The following papers were reviewed by the Court on these motions: Claimant's
Notice of Motion, Attorney's Affirmation and annexed Exhibits A-G, Defendant's
Notice of Cross-Motion, and Defendant's Affirmation in Support of Cross-Motion
and in Opposition to Claimant's Motion and annexed Exhibits A and B.
Claimant, Gary E. Mele, has moved for permission to file a late "Notice of
Claim" and for an order striking the eighth affirmative defense raised by
defendant, the State of New York, in its
The Court of Claims Act(CCA) does not provide for the late filing of a "Notice
of Claim," however, claimant can seek permission to file a late Claim pursuant
to CCA §10(6) and the Court, sua sponte, will treat his motion as
The defendant sets forth as an affirmative defense, inter alia, the
Court's lack of jurisdiction due to claimant's failure to timely file the Claim
with the Court of Claims and thus cross-moved for an order dismissing the claim
pursuant to Civil Practice Law and Rules(CPLR) R 3212 and CCA §§ 10
and 11. Claimant concedes that he did not timely file his Claim with this
Court, hence the necessity for his late Claim motion. This failure is
jurisdictional and thus the Claim must be dismissed. Lurie v State of New
York, 73 AD2d 1006, 423 NYS2d 969 (3rd Dept. 1980), aff'd, 52 NY2d
849, 437 NYS2d 77 (1981).
The underlying action involves a motor vehicle accident which took place on
December 29, 1998. Allegedly, a vehicle, owned and operated through an agency
of defendant, was traveling straight on Northern Boulevard when the vehicle in
which claimant was a passenger made a left hand turn in front of it.
Defendant's vehicle struck the claimant's vehicle on the passenger side thereby
injuring claimant. Claimant's vehicle was owned and operated by Ignasius
Rozario. Claimant is pursuing a separate action against Mr. Rozario which was
initially brought in the New York State Supreme Court and thereafter removed to
Federal Court. Claimant asserts that defendant's vehicle was traveling too fast
for the road conditions on the evening in question which were allegedly dark and
rainy. Claimant served a "Notice of Claim" on the New York State Attorney
General's Office on February 17, 1999. Claimant filed the "Notice of Claim"
with the Court of Claims on May 10, 1999. On January 18, 1999, a letter was
sent from Sedgwick Claims Management Services, Inc.(Sedgwick), the claims
administrators for the State of New York Fleet, to claimant requesting to speak
to him about the motor vehicle accident. On January 29, 1999, Sedgwick wrote to
claimant's attorney acknowledging the claim. The Attorney General's Office
interposed a Verified Answer on March 29, 1999.
The Court of Claims Act §10(6) grants upon the Court the discretion to
allow the filing of a late claim provided the Statute of Limitations as set
forth in article 2 of the CPLR has not elapsed. In determining whether relief to
file a late claim should be granted, the Court must take into consideration the
factors set forth in §10(6) of the Court of Claims Act. Bay Terrace
Cooperative Section IV, Inc. v New York State Employees' Retirement
System Policemen's and Firemen's Retirement System, 55 NY2d 979 (1982). The
factors are not necessarily exhaustive, nor is the presence or absence of any
particular one controlling. Id. They are whether (1) the defendant had
notice of the essential facts constituting the claim; (2) the defendant had an
opportunity to investigate the circumstances underlying the claim; (3) the
defendant was substantially prejudiced; (4) the claimant has any other available
remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.
At the outset, defendant argues that a Proposed Claim has not accompanied this
motion as required by CCA §10(6). However, defendant correctly anticipated
this Court's willingness to treat claimant's previously served "Notice of
Claim,"which is annexed to this motion, as his Proposed Claim for the purposes
of the present motion
. Defendant further
argues that the "Notice of Claim" fails to comply with the requirements of CCA
§11, however this Court disagrees.
Law office failure does not constitute a reasonable excuse for the late filing
of a Claim. Powell v State of New York, 187 AD2d 848, 589 NYS2d 950 (3rd
Dept. 1992); Sevillia v State of New York, 91 AD2d 792, 458 NYS2d 69 (3rd
Dept. 1982). Claimant does not offer any acceptable excuse for the delay in the
filing of his claim. However, the lack of an acceptable excuse, alone, is not
an absolute bar to a late claim application. Matter of Carvalho v State of
New York. 176 AD2d 317 (2nd Dept 1991). A reasonable excuse for untimely
filing and service is only one of several factors taken into consideration by
the Court when considering whether to allow the late filing of a claim and is
not by itself determinative.
In considering the closely related factors of notice, opportunity to
investigate, and prejudice, defendant concedes that these factors favor the
Claimant does have another viable cause of action and is presently pursuing it
in Federal Court.
The most significant issue considered by the Court in an application to file a
late claim is whether the claim appears meritorious. To permit the filing of a
legally deficient claim would be an exercise in futility. Savino v State of
New York, 199 AD2d 254 (2nd Dept. 1993). Clearly, claimant has established
that his Claim appears meritorious.
Therefore, for the foregoing reasons, defendant's cross-motion to dismiss the
claim is granted. Additionally, after weighing the statutory factors set out in
CCA §10(6), the Court finds it proper to grant claimant's motion to file a
Within sixty (60) days of the date this decision and order is filed, claimant
shall file and serve its Claim pursuant to Court of Claims Act §§11