New York State Court of Claims

New York State Court of Claims

LEBRON v. THE STATE OF NEW YORK, #2001-027-564, , Motion No. M-63053


Synopsis


Late Claim motion.

Case Information

UID:
2001-027-564
Claimant(s):
ELVIN LEBRON
Claimant short name:
LEBRON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-63053
Cross-motion number(s):

Judge:
ALTON R. WALDON, JR.
Claimant's attorney:
Elvin Lebron, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Mary B. Kavaney, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 29, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were reviewed by the Court on this motion: Claimant's Notice of Motion, Claimant's Affidavit in Support and annexed Proposed Claim, Claimant's Answer to Notice of Motion to Dismiss, Defendant's Notice of Motion and Defendant's Affirmation in Opposition. Claimant, Elvin Lebron, has moved for permission to serve and file a late Claim pursuant to §10(6) of the Court of Claims Act (CCA). Defendant, the State of New York, has submitted a Notice of Motion to Dismiss and an annexed Affirmation in Opposition in reply to this motion.[1]

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.

In support of his motion, claimant has submitted a fourteen page handwritten single spaced Proposed Claim. 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). It is unclear from his submission what claimant is seeking relief for and consequently whether any alleged underlying claim has merit. Since it is impossible for the Court to decipher a viable cause of action from the submitted documents the motion to file a late Claim must be denied. Hodge v State of New York, 213 AD2d 766 (3rd Dept. 1995).

Therefore, for the foregoing reasons, claimant's motion is denied.

May 29, 2001
New York, New York

HON. ALTON R. WALDON, JR.
Judge of the Court of Claims




[1]Since the motion before the Court is an application to file a late Claim, the Court has treated defendant's response papers as opposition papers and not as a cross-motion application.