New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2001-011-526, Claim No. NONE, Motion No. M-62670


Synopsis


Claimant's motion for permission to late file a claim for damages arising from the loss of personal property is granted.

Case Information

UID:
2001-011-526
Claimant(s):
TONY PEREZ
Claimant short name:
PEREZ
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-62670
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Tony Perez, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Michele M. Walls, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
February 22, 2001
City:
Saratoga Spring
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


This is a motion for permission to late file a claim for damages arising from the loss ofpersonal property.

When considering a motion for permission to late file a claim, the court is required to address six factors enumerated in Court of Claims Act §10(6). The first of those factors is whether there is a reasonable excuse for the delay in filing. The excuses offered by Claimant, ignorance of the filing requirement and his incarceration, are not sufficient reasons for the delay.

Other factors to be considered are whether Defendant had notice of the essential facts of the claim and an opportunity to investigate. Claimant submitted a claim to the facility within three weeks of the loss so that Defendant not only had notice but in fact, did conduct an investigation. Consequently, the delay in filing has not caused substantial prejudice to Defendant.

Also to be considered is whether the proposed claim has an appearance of merit. A claim is said to have merit when it is not patently groundless, frivolous or legally defective and there is reason to believe that a valid cause of action exist (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). On that basis, the allegation that he shipped five bags of personal property when he was transferred and only received three bags when he arrived at the new facility, provides the proposed claim with the necessary appearance of merit.

No adequate alternate remedy is available.

On balance, consideration of the factors in CCA §10(6) weigh in favor of granting the motion. Claimant is to serve and file the proposed claim in the manner required by Court of Claims Act §11 within thirty days of service upon him of a file-stamped copy of this order.

February 22, 2001
Saratoga Spring, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Notice of Motion to File Late claim dated October 25, 2000
  2. Affidavit in Support sworn to the 18th day of October, 2000 with exhibits annexed
  3. Affirmation in Opposition of Michele M. Walls, Esq., dated December 13, 2000