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
: 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
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).
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'
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