New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2001-010-018, Claim No. NONE, Motion Nos. M-62840, CM-63047


Synopsis


Claimant's late claim application is DENIED.

Case Information

UID:
2001-010-018
Claimant(s):
RAPHAEL RODRIGUEZ
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-62840
Cross-motion number(s):
CM-63047
Judge:
Terry Jane Ruderman
Claimant's attorney:
RAPHAEL RODRIGUEZPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 12, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's late claim application and defendant's cross-motion to dismiss:
Motion for Permission to File a Late Claim and Proposed Claim............................1

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibit..............2

Defendant opposes claimant's motion for leave to file a late claim on the ground that claimant failed to serve defendant with a copy of any of the necessary papers (Ex. A). On this jurisdictional basis alone, claimant's motion warrants denial.

Additionally, it is noted that 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).

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). The Court has considered the aforenoted six factors and determined that claimant's papers fail to establish entitlement to leave to file a late claim.

Motion DENIED. Cross-Motion GRANTED.


March 12, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims