New York State Court of Claims

New York State Court of Claims

CAIN v. THE STATE OF NEW YORK, #2001-010-005, Claim No. NONE, Motion No. M-62490


Claimant's late claim application is denied.

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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 4, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on claimant's motion for leave to file a late claim:
Notice of Motion, Claimant's Unsworn "Affidavit" in Support, Proposed Claim and Exhibits......................................................................................................................1

Attorney's Affirmation in Opposition and Exhibit...................................................2

Filed Papers: Claim, Answer

On December 27, 1999, claimant filed Claim No. 101685. On April 21, 2000, the claim was served on the Attorney General's office. Defendant answered the claim on May 21, 2000 and raised five affirmative defenses including lack of jurisdiction based upon untimely service upon defendant (Answer, ¶ 6). In November of 2000, claimant brought the instant motion for leave to serve and file a late claim.

The proposed claim alleges that on July 19, 1999, defendant was negligent in failing to transport claimant, an inmate at Sing Sing Correctional Facility, to his mother's funeral in Brooklyn, NY.

The determination of a motion for leave to file a late claim requires the Court to 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 presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the aforenoted six factors. Claimant's purported excuse for his failure to timely serve and file a claim is essentially ignorance of the law which is not a valid excuse (see, Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). Additionally, the State would be substantially prejudiced by a granting of claimant's application one year and four months after the alleged incident which is the basis of the claim (see, Malek v State of New York, 92 AD2d 659).

Most significantly, claimant has failed to demonstrate the appearance of merit of the proposed claim (see, Qing Liu v City Univ. of N. Y., 262 AD2d 473; Matter of Gallagher v State of New York, 236 AD2d 400). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Here, even giving this pro se claimant the most liberal reading of his papers, he has failed to establish the appearance of merit of any cognizable claim.

The decision whether to grant a funeral visit is discretionary under Section 113 of the Corrections Law which states, "[t]he commissioner of correctional services may permit any inmate confined by the department *** to attend the funeral of his *** mother ***" (emphasis added). Accordingly, the refusal to grant permission does not give rise to a viable cause of action (see, Rivera v State of New York, 169 AD2d 885). Here, however, while claimant was granted permission, two emergencies arose that day which prevented claimant from being transported (Defendant's Ex. A). On the papers presented, claimant has failed to establish the appearance of merit of his proposed claim (see, Qing Liu v City Univ. of N.Y., supra; Matter of Gallagher v State of New York, supra).

Accordingly, upon weighing all the factors, claimant's motion for leave to file a late claim is DENIED.

January 4, 2001
White Plains, New York

Judge of the Court of Claims