New York State Court of Claims

New York State Court of Claims

SCHWANDT v. THE STATE OF NEW YORK, #2001-028-572, Claim No. 102745, Motion Nos. M-63617, CM-63866


Claimant's CCA 10(6) motion is granted only as to negligence claims. Application is untimely as to intentional torts and there is no jurisdiction over federal civil rights claims. Court does not reach questions raised by amendment restoring vitality to CCA 10(8) permitting Notice of Intention to be deemed a claim.

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:
BY: Michele M. Walls, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 14, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the Court's Order to Show Cause for clarification from the parties regarding service of this claim and Claimant's cross- motion for permission to late file a Claim or to deem the Notice of Intention a Claim pursuant to Court of Claims Act § 10(6) and 10(8), respectively:

1. Order to Show Cause, signed June 13 and filed on June 15, 2001;

2. Affidavit of Carol A. McKay, sworn to on the 12th day of July, 2001 with annexed Exhibits A - C (McKay Affidavit);

3. Notice of Cross-Motion and affidavit of Lewis B. Oliver, Esq. filed August 1, 2001 with annexed Exhibits 1& 2 (Oliver Affidavit);

4. Affirmation in Opposition to the Cross-Motion of Assistant Attorney General Michele M. Walls, filed August 28, 2001, with annexed Exhibit A (Walls Affirmation); and

5. Filed papers: Claim, filed July 14, 2000.

Upon review of its file, the Court issued an Order to Show for the parties to clarify whether service of the Claim, which was filed with the Clerk of the Court on July 14, 2000, was in fact served upon the Attorney General in compliance with the Court of Claims Act. In response, Claimant has filed a cross motion seeking to have its Notice of Intention to File a Claim treated

as a Claim pursuant to §10(8), or in the alternative for permission to late file her claim pursuant to §10(6). The Defendant opposes the cross-motion arguing in the first instance that relief pursuant to §10(8) is no longer available; that relief under either section of law is precluded as to all intentional tort claims raised as the applications are untimely and relief pursuant to 10(6) is not warranted as, inter alia, the claim lacks the appearance of merit.

Procedurally, claimant timely served a Notice of Intention upon the Attorney General on October 12, 1999 (Walls Affirmation, ¶ 5) which sets forth in greater detail the allegations of the claim. Thereafter, Claimant timely filed her Claim with the Court, but failed to serve same upon the Attorney General. Drawing from the duly verified Notice of Intention (Walls Affirmation, Exhibit A) and the filed verified Claim, the Court discerns the following. The instant claim flows from Claimant's arrest on or about July 15, 1999 by the Niskayuna Police Department allegedly based upon a bench warrant issued by the Troy City Court for failing to pay a fine. Claimant alleges the warrant should have been vacated or recalled upon her payment of a fine to the Troy City Court on April 14, 1998. Claimant alleges that following her transfer from the Niskayuna Police Department to the Troy Police Department, she was brought before a Judge of the Troy City Court on the morning of July 16, 1999. According to Claimant, the Judge dismissed the charges and apologized to her (Verified Claim, ¶ 23). Claimant asserts her claim is
for negligence, failure to perform a ministerial duty, false arrest, false imprisonment, wrongful detention, illegal search and seizure, gross negligence, defamation, violation of rights under the New York State Constitution, violation of civil rights in violation of 42 USC 1983, violation of due process of law, violation of the Fourth and Fourteenth Amendments of the United States Constitution.
(Verified Claim, ¶ 3).

Initially, the Court must address whether there has been compliance with the service requirements of the Court of Claims Act, as raised by the Court's Order to Show Cause. Section 11(a) of the Court of Claims Act requires the claim to be served upon the Attorney General either personally or by certified mail, return receipt requested. A claim which is not served in this manner is subject to dismissal because of the absence of personal jurisdiction over the defendant. Adkison v State of New York, 226 AD2d 409; Bogel v State of New York, 175 AD2d 493; Baggett v State of New York, 124 AD2d 969. The McKay Affidavit established the Attorney General was not served with the Claim, a fact Claimant can neither dispute, nor explain (Oliver Affidavit, ¶ 6). Consequently, the court does not have jurisdiction of the claim, and it must be dismissed.

Turning now to the relief requested in the cross motion, as a threshold issue, an application pursuant to either Court of Claims Act §10(8) or §10(6) must be made before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules. Claimant's cross motion was filed with the Court and mailed to the Attorney General on August 1, 2001 (see, Unigard Insurance Group v State of New York, ___AD2d ___, 731 NYS2d 195), and to the extent that it alleges an intentional tort, such motion should have been filed within one year of the accrual of the cause of action (Court of Claims Act §10[3-b]; CPLR 215). The latest date complained of in the proposed claim is July 16, 1999, and thus this application is untimely as it was made more than one year after accrual (Maendel v State of New York, 178 Misc 2d 297). On the other hand, a claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention, as here, is served upon the Attorney General within such 90 days (Court of Claims Act, § 10[3]), in which case, the claim must then be served and filed within two years from the date of accrual[1]. (Court of Claims Act §10[3-a]) As such, an application to late file a negligence claim or to treat the Notice of Intention as a Claim, must be made within three years of accrual or, in this case, no later than July 16, 2002. (CPLR 214[5]) Thus, only Claimant's allegations of negligence are properly before the Court and subject to the Court's consideration for the relief requested.[2]

Defendant's first argument, that §10(8) relief is not available, follows from the fact the Legislature, when it removed the requirement of filing Notices of Intention with the Court of Claims, did not simultaneously amend the language of section 10(8)(a) that conditions the availability of its remedy upon timely service and filing. Thereafter, a split of opinion developed within the Court of Claims whether the Legislature's actions impliedly repealed that section (compare, Konviser v State of New York, 180 Misc 2d 174; McDonald v the State of New York, CtCl, UID #2000-004-516, Claim No. 100165, Motion No. M-60864 [Hanifin, J.], June 16, 2000[3]; Waxter v State of New York, Ct Cl, UID #2000-007-002, Claim No. 100157, Motion No. M-61267, [Bell, J.], April 5, 2000, and Brill v State of New York, Ct Cl, Motion No. M-60994, [unreported Decision of Bell, J.], filed March 27, 2000; with Muller v the State of New York, 184 Misc 2d 500 [O'Rourke, J.]; Lucas v The State of New York,  Ct Cl, UID #2001-010-046,, Motion No. M-63163, [Ruderman, J.], July 9, 2001 and Fox v State of New York, Ct Cl, Claim No. 99171, Motion No. M-58800,; Cross-Motion No. CM-58963, [unreported Decision of King, J.], June 7, 1999). This issue was resolved following passage by the Legislature of A. 7925/ S. 4409, which amended the Court of Claims Act to ensure that a timely and properly served notice of intention may be treated as a claim under appropriate circumstances, and when, on August 20, 2001, the Governor signed the amendment into law, effective immediately (Laws of 2001, Chapter 205). The foregoing necessarily raises questions regarding the amendment's application to the instant motion, whether the amendment is retroactive, and if not, which line of cases - impliedly repealed or still vital - this Court would follow. Since, however, the Court can resolve the instant motion by applying late claim filing analysis, the Court need not reach these questions.

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.

Applying these factors, Claimant's attorney's failure to effectuate service upon the Attorney General, despite a practice of doing so (see, Oliver Affidavit, supra), whether viewed as an attorney error or as law office failure is not an accepted excuse (Brennan v State of New York, 36 AD2d 569; Sevillia v State of New York, 91 AD2d 792). Thus, this factor weighs against Claimant's application.

Notice, opportunity to investigate and substantial prejudice to the defendant if this claim was permitted to be filed are not issues here. The defendant had timely notice of the claim through the timely and properly served notice of intention to file claim. Therefore, defendant had an opportunity to investigate, and would not be substantially prejudiced by the filing of the claim.

The most significant issue considered by the Court in an application to file a late claim is whether the claim appears meritorious; that is, that the Claim is not patently groundless, frivolous or legally defective. 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). The thrust of Defendant's argument in essence is Claimant cannot allege with precision which entity, or where along the chain of responsibility, the failure to vacate the bench warrant happened. While the aforementioned standard on a late filing application clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections, nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case. (Matter of Santana v New York State Thruway Authority, supra, at 11-12). The Defendant's further objection based upon a lack of an affidavit from the claimant[4] does not establish the claim lacks merit. Claimant has alleged in sworn documents that the fine was paid, the bench warrant was not vacated (alleged to be a ministerial duty), she was brought before the Court on the bench warrant and she was released upon the dismissal of the charges (Verified Claim, ¶ 23). It is settled that liability may flow from the negligence of non-judicial employees in performing their ministerial duties (see, Marx v State of New York, 169 AD2d 642 [housing court clerks lost file and failed to alert marshall petition of dispossession dismissed]; Saunsen v State of New York, 81 AD2d 252, 253-254; see also, Boland v. State of New York, 218 AD2d 235, 244 [ there is ample authority for imposing liability upon the State based upon the negligent performance of a ministerial act]) and, as this Court has held, from the State's transmission of inaccurate information to police agencies (see, Sankara v State of New York, Ct Cl, Claim No. 102035, Motion No. M-63054, [unreported Decision, Sise, J.], June 13, 2001). The defendant's submission of only an attorney's affirmation, simply indicates there is a different view of ultimate responsibility for claimant's alleged injuries. In short, if Claimant's version of the facts is true, then a cause of action exists either because the court personnel failed to retire the warrant and relay that information, or because the defendant failed to correct its records. Therefore, the Court finds that Claimant has established the proposed claim appears meritorious within the meaning of CCA 10 (6) (Marcus v State of New York, 172 AD2d 724).

The final factor is whether claimant has any other available remedy. Claimant is apparently pursuing a claim in state court and thus she does have other apparent remedies.[5]

Upon balancing all of the factors contained within Court of Claims Act §10(6), this Court finds that Claimant's application should be granted only as to the asserted negligence causes of action.

It is therefore,

ORDERED, that claimant's application for permission to file a late claim against the State of New York is granted in part and denied in part; Claimant is granted permission to late file her claim with causes of action sounding in negligence and is denied permission to late file her claim for intentional torts, violations of the New York State and United States Constitutions, violations of due process of law and violations of 42 USC § 1983; and it is further

ORDERED, that Claimant shall file a new claim setting forth only causes of action alleging negligence and drafted consistent with this decision and order, pursuant to the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the Attorney General, within 45 days of the date of the filing of this Order; and it is further

ORDERED, that Claim No. 102746 shall be and hereby is dismissed.

December 14, 2001
Albany, New York

Judge of the Court of Claims

[1] At the time of the Court's Order to Show Cause, Claimant, having timely served a Notice of Intention, could have timely served her Claim for negligence as two years had not elapsed. At the time Claimant filed the cross motion, the two year window of opportunity had closed. The Court therefore treats the Claim, attached to the cross-moving papers, as the proposed claim.
[2] To the extent the proposed Claim alleges violations of federal constitutional rights and causes of action pursuant to 42 U.S.C. § 1983, such claims are not within the jurisdiction of this Court (see, Zagarella v State of New York, 149 AD2d 503; Ferrick v State of New York, 198 AD2d 822). Similarly, because of the existence of other remedies, the Court does not imply a cause of action for alleged State Constitution violations (see, Martinez v City of Schenectady, 276 AD2d 993 affd __ NY2d __, 2001 WL 1459659 [November 19, 2001] [confirming the "narrow remedy" established in Brown v State of New York [89 NY2d 172]; see also, Remley v State of New York, 174 Misc 2d 523).

[3]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

[4] The Court notes that both the Notice of Intention and the Claim are duly verified by the Claimant and thus may be used in lieu of an affidavit by the Claimant (CPLR § 105[u]; A & J Concrete Corp. v Arker, 54 NY2d 870, 872; Dyno v Rose, 260 AD2d 694, 698 [using complaint verified by a party]).
[5] Claimant may also pursue certain of her claims, over which this Court lacks jurisdiction, (see, footnote 2, supra) in federal court, thereby providing additional available remedies.