The following papers were read on the claimant's application for permission to
file a late claim: Notice of Motion, Affirmation and Exhibits annexed;
Affirmation in Opposition; Reply Affirmation. The proposed claim involves a
personal injury action in which, it is alleged, the claimant, an insurance
company, and the State Insurance Fund were co-insurers of the third party
defendant. The claimant seeks permission to file a late claim for breach of
contract, alleging that the State Insurance Fund has failed to indemnify it for
an amount it paid on behalf of its insured in settlement of the personal injury
claim, and for related attorneys fees.
Although the six month period to serve and file a claim or to serve a notice of
intention has lapsed, Court of Claims Act §10(4), this application was
filed within the relevant statute of limitation so the Court has jurisdiction to
grant relief under §10(6), and has considered the factors listed therein.
See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees'
Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979,
The defendant opposes the application on the grounds that the delay, over five
years, is not excusable, and that the claimant has not demonstrated that the
claim appears meritorious.
The claimant has offered no excuse for the delay in filing a claim.
The defendant does not oppose this application on the basis of the statutory
factors of notice or opportunity to investigate. Those factors are therefore
presumed to weigh in the claimant's favor. See, Calzada v State of New
York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024.
Counsel for the defendant asserts that the defendant has been prejudiced "due to
the passage of time and the fading of memories." Upon the record before the
Court, the failure to file a timely claim or notice of intention has not
resulted in substantial prejudice to the State.
The basis for the argument of counsel that the claim does not appear to be
meritorious is that the defendant in the personal injury action was an
additional insured under an endorsement to the claimant's insurance policy, so
that the claimant should have defended the additional insured and had the
impleader against the third party defendant dismissed. See, Pennsylvania
General Insurance Company v Austin Powder Company, 68 NY2d 465. It is the
claimant's position that the legal principle that an insurer "has no right of
subrogation against its own insured for a claim arising from the very risk for
which the insured was covered" (Id., at 468), is inapplicable to the
underlying personal injury action because the defendant was not, in fact, an
additional insured under the facts of the case. "[T]he critical issue in
ascertaining whether the antisubrogation rule applies" is whether the policy
covers both insureds "for the damages arising out of the subject accident."
McGurran v DiCanio Planned Development Corp., 216 AD2d 538, 539-540. While
the defendant's position may ultimately constitute a defense to the claim, it
does not at this stage on the record before the Court suffice to support the
conclusion that the claim does not appear to be meritorious. See, Travelers
Insurance Company v Commissioners of the State Insurance Fund, 227 AD2d
It does not appear from the submissions that the claimant has any other
The proposed claim contains the information set forth in Court of Claims Act
Having considered the relevant statutory factors, Bay Terrace, supra,
the balance of factors weigh in claimant's favor. It is therefore,
ORDERED, that claimant's application for permission to file a late claim
against the State of New York is granted; claimant shall file the proposed claim
in the form in which it is annexed to the application as Exhibit E in accordance
with the provisions of Court of Claims Act §§ 11 and 11-a and Rule
206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance
with the provisions of Court of Claims Act §11, either personally or by
certified mail return receipt requested, upon the Attorney General, within 45
days of the date of the filing of this Order.