New York State Court of Claims

New York State Court of Claims

SCHIRMER v. STATE OF NEW YORK, #2001-016-025, Claim No. None, Motion No. M-62902


Late claim motion granted for claimant arrested pursuant to mistaken Family Court warrant.

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:
Wallace & Witty, P.C.By: Peter Graff
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, AAG
Third-party defendant's attorney:

Signature date:
April 11, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Lori Schirmer, by this motion, which is opposed by the defendant, seeks permission to file a late claim in accordance with the provisions of §10.6 of the Court of Claims Act (the "Act"). The underlying claim arose from Ms. Schirmer's arrest on a warrant issued by the Family Court and executed by the Suffolk County Police.

Subdivision 6 of §10 of the Act enumerates six factors to be weighed in such a motion, although the six are not necessarily exhaustive, and the presence or absence of any particular one is not controlling[1]: namely, whether (1) the delay was excusable; (2) claimant has any other remedy; (3) defendant had notice of the essential facts constituting the claim; (4) defendant had an opportunity to investigate; (5) defendant would be substantially prejudiced; and (6) the claim appears to be meritorious.

Claimant and an individual named Edward Vorisek were opposing parties in Matter of Vorisek v Schirmer, a proceeding under Article 5 of the Family Court Act. On August 24, 2000 a warrant of arrest was issued by the Family Court of the State of New York (Peter Dounias, J.) for Lori A. Schirmer, residing at 36 Sunflower Drive, Bohemia in Suffolk County (cl exh 1). Pursuant thereto, Schirmer was arrested by the Suffolk County police at her home on Friday, September 8, 2000 at about 1 p.m. and brought to the Family Court in Central Islip, Suffolk County. She was released later that day as a second warrant of arrest was issued for Edward Vorisek who resided at 29 Elsie Road in Patchogue (also Suffolk County), apparently a correction of the earlier warrant (cl exh 2).

Tortious actions of the Family Court, or of its officers and employees that can be imputed thereto, are actions of the State of New York which may only be challenged in the Court of Claims. Unfamiliarity with the law does not excuse a late filing in this Court. Mtr of E.K. v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997). By and large, sufficient facts were known by September 8, that if a tortious act had been committed, it was likely that the State of New York had done so. It would not have been a reasonable conclusion at such stage that the sole tortfeasor was a local police force improperly executing an otherwise valid warrant. See, for example, Williams v City of Buffalo, 72 AD2d 952, 422 NYS2d 241 (4th Dept 1979).[2] Accordingly, claimant has not, for purposes of the Act, advanced a valid excuse for the delay beyond the jurisdictional time limits contained in §10.3, but does, as indicated above, satisfy the second criteria of §10.6 as to the unavailability of an alternative remedy.

The next three factors covering notice, opportunity-to-investigate and prejudice are closely related and may be considered together. Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Under §10.3 of the Act, a claim sounding in tort-- or a notice of intention to file such a claim -- must be filed and served within 90 days, i.e. 90 days from September 8, 2000, or about December 7, 2000. Claimant's motion papers contain an affidavit of service by mail on the Attorney General dated December 28 of that year (exh 3). Defendant thus received the motion papers including Schirmer's affidavit, her counsel's affirmation, the proposed claim and copies of the two warrants on or about the first of the year (2001), some four weeks after the close of the window established by §10.3. Especially inasmuch as this case is highly documented (and does not, for example, turn on a defect or condition of an essentially transitory nature), the defendant was afforded sufficient notice, the opportunity to properly investigate was not lost or diminished, and no credible showing of prejudice has been made. Such conclusion can be reached without resort to the argument that since a second warrant was issued – against the opposite party in the same action -- there was an immediate awareness by the issuing entity that the prior warrant was mistakenly directed.

The standard for the final statutory factor - - the appearance of merit - - may be set forth as follows: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977). Under Prusack v State of New York 117 AD2d, 729, 730, 498 NYS2d 455, 456 (2d Dept 1986), "it would be futile to permit the filing of a legally deficient [late] claim." It is possible that the actions of the State here would be immunized, and the claim could not succeed. See Weiner v State of New York, 273 AD2d 95, 710 NYS2d 325 (1st Dept 2000). However, at this point, matters are still sufficiently undeveloped that it cannot readily be concluded that Schirmer's claim is legally defective or deficient, and therefore per Santana, it does bear the appearance of merit.

Accordingly in view of the foregoing, having reviewed the parties' submissions, [3] IT IS ORDERED that this motion (M-62902) requesting permission to file a late claim be granted. Within sixty (60) days of the filing of this Order, claimant shall serve and file her claim in accordance with sections 11 and 11-a of the Court of Claims Act.

April 11, 2001
New York, New York

Judge of the Court of Claims

[1] See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys., Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
[2] Claimant affirms that it was not until her lawyer reviewed the file on December 21, 2000 at Family Court, Suffolk County and saw the two warrants that she became aware of what happened (counsel affirm., ¶6). There is some precedent for this kind of date of discovery with respect to whether a delay in filing is excusable per §10.6. See Matter of Santana, infra, 92 Misc 2d at 6-7, 399 NYS2d at 399-400.
[3] The following were reviewed -- from claimant: a Notice of Motion together with an Affirmation by counsel, an Affidavit from claimant, the Proposed Claim and three exhibits; and from defendant, an Affirmation in Opposition to Claimant's Motion.