New York State Court of Claims

New York State Court of Claims

MELE v. THE STATE OF NEW YORK, #2001-027-553, Claim No. 100317, Motion Nos. M-61163, CM-61241


Late Claim motion and cross-motion to dismiss.

Case Information

GARY E. MELE The caption has been amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Wayne D. Kurzner, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Nancy Hornstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 2, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 Answer.[1]

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 such.

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[2]. 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.

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 late Claim.

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 and 11-a.

May 2, 2001
New York, New York

Judge of the Court of Claims

[1]The claimant has also moved for permission to file a late Notice of Intention to File a Claim. However the Court is not authorized under §10(6) of the Court of Claims Act to allow a late Notice of Intention to File Claim. De Hart v. State of New York, 401 NYS2d 417 (Ct. Cl. 1977).
[2]The Proposed Claim should however be amended to list the State of New York as the only proper party defendant in this action.