New York State Court of Claims

New York State Court of Claims

BRYANT v. THE STATE OF NEW YORK, #2000-028-101511, Claim No. N/A, Motion No. M-62023


Claimant is granted permission to late file a claim alleging that the Department of Labor in its duty to screen job applicants referred through employee recruitment agency, where information relating to the claim is in the exclusive control of defendant and the State has no opposed the motion.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Michael H. Sussman, Esq.
Law Offices of Michael H. Sussman
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
September 27, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant's motion for permission to file an untimely claim pursuant to Court of Claims Act § 10(6).

• abNotice of Motion and Supporting Affirmation of Michael H. Sussman, Esq., filed July 7, 2000, with annexed Proposed Claim and Exhibits A - D ("Sussman affirmation")

Claimant's proposed claim[1] alleges that in April 1999, in his capacity as President of Mechanical Resources, Inc., he hired as his company's bookkeeper one Tina Raymond; in January 2000, it was discovered that Ms Raymond had misappropriated a check on at least one occasion and had otherwise stolen approximately $70,000.00 from his company. The State's liability for this loss is premised on allegations that the New York State Department of Labor failed to properly screen and investigate Ms Raymond's background before she was referred to claimant by the Orange County Career Center, which is described as "an agency affiliated with and funded by the Department of Labor." (Proposed Claim, pg 1)
In 1998, when claimant was deciding whether to move his company from New Jersey to New York, he had been promised a number of inducements, such as tax credit and grant/loan combinations, by the "Orange County Partnership." One of the inducements was described as follows: "Department of Labor Assistance Employee recruitment, screening and interviewing. It is free of charge." (Bryant affidavit, Exh B). In addition, in March 1999, representatives of the Department of Labor who attended a meeting organized by the Orange County Partnership told claimant that he could fax job openings directly to the Orange County Partnership and interested employees would be screened and referred to claimant (Bryant affidavit, ¶ 5).
Claimant alleges that the Department was negligent in carrying out its promised screening. If the Department had properly screened Ms Raymond, it would have discovered that approximately one month before she was referred to claimant, she was sentenced to five years probation with restitution on a felony count of Grand Larceny (Bryant affidavit, Exh C). The charges against Ms Raymond arose from her prior employment as bookeeper for an Orange County business (id., Exh D).
This motion was brought approximately fifteen months or less after the proposed claim arose,[2] and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214). In determining a motion for permission to file a late claim, the Court must consider, among
other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 1) whether the delay in filing the claim was excusable; 2) whether the State had notice of the essential facts constituting the claim; 3) whether the State had an opportunity to investigate the circumstances underlying the claim; 4) whether the claim appears to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the claimant has another available remedy. The Court in the exercise of its discretion balances these factors; the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimant failed to timely initiate an action in this court because he was not aware of the time limitations for instituting suit in this Court until he consulted with an attorney and, in addition, he states that he spent "much of the last six months trying to unravel what Ms Raymond did and to recover my business from her very substantial misdeeds" (Bryant affidavit, ¶ 18). Although the Court can sympathize with the confusion that must have resulted from Ms Raymond's misdeeds, there was nothing preventing claimant from obtaining necessary information about filing with this Court. Ignorance of the law does not excuse a litigant from failing to comply with the statutory requirements (Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854;), nor does the fact that an injured party has failed or even has been unable to obtain the services of an attorney (Simpson v State of New York, 96 AD2d 646).
Claimant further asserts that the State had notice of the essential facts constituting the claim because there was significant news coverage of the events, specifically articles in the local press which appeared in March 2000 (Bryant affidavit, ¶ 15). News coverage about the bookkeeper's misdeeds would not, however, necessarily make the State aware that there would be -- or would likely be -- litigation in the future (see, Block v New York State Thruway Authority, 69 AD2d 930). On the other hand, because any screening by the Department of Labor would have been completed sometime in April 1999, the additional delay beyond the ninety days permitted by statute would not significantly interfere with the State's ability to properly investigate the underlying facts, since most of that investigation would be of permanent documents. Consequently, defendant's opportunity to investigate the circumstances underlying the claim was not significantly impeded, and permitting the filing of an untimely claim would not, in the Court's view, result in substantial prejudice to the State.
It does appear that Claimant may have other remedies for compensation of his losses, in particular a civil action against Ms Raymond. It is unlikely, however, that that remedy would result in full recovery (see, Epstein v State of New York, 88 AD2d 967 [realistic limit on potential recovery from driver of another vehicle]).
Even if the other factors in Court of Claims Act § 10 (6) tend to favor the granting of claimant's motion, permitting a legally deficient claim to be filed would be meaningless and futile (Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967). To meet the burden of establishing that the proposed claim has sufficient merit, claimant need only show that it is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).
While the Court has significant concerns regarding the viability of the proposed cause of action, defendant has inexplicably failed to oppose the instant motion. Much of the information that would establish, or refute, the merit of the proposed claim may be known by the State but would become available to claimant only through the process of discovery. For example, at the present time, neither claimant nor the Court have any reliable information about the roles played by the Department of Labor, the Orange County Career Center, and the Orange County Partnership, nor is it known whether the Department of Labor maintains guidelines or rules regarding steps that must be taken to provide its employee recruitment, screening and interviewing service. Without information to clarify these matters, the Court cannot say that the proposed claim is on its face frivolous, groundless or lacking in legal merit.
Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting claimant's motion for permission to file a late claim. The motion is granted and claimant is permitted to file and serve a claim substantively identical to the proposed claim submitted in support of this motion but corrected as to form (see Court of Claims Act § 11[a] and CPLR 3013, 3014). The claim shall be filed and served in conformity with the requirements of Court of Claims Act §§ 10 and 11 within sixty (60) days after this order is filed.

September 27, 2000

Albany, New York

Judge of the Court of Claims

[1] The proposed claim is incorrectly captioned "Notice of Claim." Section 11 of the Court of Claims Act provides for filing and service of either a "claim" or a "notice of intention."
[2] Any wrongful act committed by the Department of Labor was completed by April 1999. If, as claimant asserts, the claim did not accrue until claimant had actual damages, the motion has been brought only seven months after January 2000.