New York State Court of Claims

New York State Court of Claims

ROGERS v. THE STATE OF NEW YORK, #2001-028-565, Claim No. NONE, Motion No. M-63626


Claimant's CCA 10(6) motion denied without prejudice.

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:
Defendant's attorney:
MELVIN & MELVIN, LLPBY: Michael R. Vaccaro, Esq.
Third-party defendant's attorney:

Signature date:
October 16, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion for permission to late file a Claim

pursuant to Court of Claims Act § 10(6)

• abMotion for Permission To File A Late Claim of Charles Rogers, filed June 18, 2001, (Rogers Motion) with attachment.
• abAffidavit in Opposition of Michael R. Vaccaro, Esq., (Vaccaro Opposition), filed August 2, 2001, with annexed Exhibits A-F.

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). 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.

The document captioned Motion for Permission to File a Late Claim is a form that purports to address the statutory factors of §10(6) and, in the absence of a document denominated a "proposed claim," the Court deems the attachment to the Rogers Motion as the proposed claim.

That document provided the following description of the facts giving rise to the claim:
On the date of 02/02/01 at or around 2:00 p.m. while being in transit, the bus that was bringing me and others to WATERTOWN {Correctional Facility} from ULSTER {Correctional Facility}, had an accident on I 81 between exit 97&98. Where I suffered injuries to my left hand that are not being cared properly,...
(Rogers Motion, attachment).

As a threshold issue, the Court has jurisdiction to review and determine this motion since it was timely filed within the relevant statute of limitations provided by Article 2 of the CPLR.

The most significant issue considered by the Court in an application to file a late claim is whether the claim appears meritorious. As defendant correctly points out, to permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). It is unclear from his submission what claimant is seeking relief for and consequently whether any alleged underlying claim has merit[1]. Moreover, the mere happening of an accident does not render the State liable (see, Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). To the extent the proposed claim is attempting to assert a malpractice claim for improper medical care, the Court finds no basis to excuse the lack of an expert medical affidavit (see, De Paolo v State of New York, 99 AD2d 762 ), and the failure to provide one is a fatal flaw in Claimant's ability to establish his claim as meritorious. (See, Jolley v State of New York, 106 Misc 2d 550, 551-552; Dunwoody v State of New York, [Ct Cl, Corbett, J.] Claim No. 99581, UID#2000-005-518, June 26, 2000).[2] Since it is impossible for the Court to decipher a viable cause of action from the submitted documents (Hodge v State of New York, 213 AD2d 766), the motion to file a late Claim is denied, without prejudice.

October 16, 2001
Albany, New York

Judge of the Court of Claims

[1] Defendant's opposition papers certainly filled in many of the factual blanks by providing, i.e., the MV-104AW (Vaccaro Affirmation, Exhibit B); however, it did not provide any potential theory of the case.

[2]Recent decisions of the Court of Claims are available in a searchable database on the internet, free of charge. Access may be gained through the Court of Claims website at