New York State Court of Claims

New York State Court of Claims

NATIONAL UNION v. THE STATE OF NEW YORK, #2001-027-573, , Motion No. M-62052


Claimant's Late Claim motion.

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:
Lester, Schwab, Katz and Dwyer, LLP.By: Bruce Strikowsky, Esq. and Joshua Zimring, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Ellen S. Mendelson, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 26, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were reviewed by the Court on this motion: Claimant's Notice of Motion, Claimant's Affirmation and annexed Exhibits A and E, Claimant's Reply Affirmation, Defendant's Affirmation in Opposition and annexed Exhibit A.

Claimant, National Union Fire Insurance Company of Pittsburgh, PA., has brought this motion seeking permission to file a late Claim pursuant to Court of Claims Act(CCA) § 10(6). Defendant, the State of New York, has opposed this motion.

The underlying claim seeks reimbursement from the State Insurance Fund for defense costs generated by claimant's in-house staff counsel defending 902 Associates, claimant's insured, in an underlying personal injury action. In that suit, 902 Associates, a landowner, was granted common law indemnification against the tort plaintiff's employer, Waldorf Carting. Waldorf Carting was insured by the State Insurance Fund for its common law liability arising out of injuries to its employees. Claimant, as subrogor to 902 Associates, is seeking recovery of the costs of the defense of the personal injury action. Claimant is not seeking the costs associated with prosecuting the common law indemnity claim.

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.

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 its 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, the Court finds it significant that there has been an extensive history of litigation involving the issues presented here in various Supreme Court actions. After weighing all the circumstances involved in the present action, these factors are found to be in claimant's favor.

Claimant does not have a viable cause of action against another entity.

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). There seems to be a dispute as to which legal fees claimant is attempting to recover. However, claimant has specifically stated that it is only seeking to recover the costs associated with defending the main personal injury matter. Claimant has also reiterated that it is not seeking to recover the costs associated with its prosecution of its third party common law indemnification action. Claimant correctly concedes that it would not be entitled to recover these fees. (see, Chapel v Mitchell, 84 NY2d 345 (1994)). Thus, claimant has established, for the purposes of this motion, through its Proposed Claim that, at this stage of the litigation process, its Claim appears meritorious.

Therefore, for the foregoing reasons, claimant's motion to file a late Claim is granted. Within sixty (60) days of the date this order is filed, claimant shall file and serve its claim pursuant to the Court of Claims Act §§ 11 and 11-a.

June 26, 2001
New York, New York

Judge of the Court of Claims