New York State Court of Claims

New York State Court of Claims

HOCKEY v. STATE OF NEW YORK, #2002-018-174, Claim No. NONE, Motion No. M-65306


Motion to file late claim denied after balancing all factors in Court of Claims Act §10(6).

Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

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Claimant's attorney:
Defendant's attorney:
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Signature date:
October 24, 2002

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See also (multicaptioned case)

Movant brings this motion seeking permission to file a late claim as a result of damages

to his residence allegedly caused by blasting work done on Route 37 in the Village and

Township of Ogdensburg on October 25, 2000, by a contract vendee of the New York State

Department of Transportation. Defendant opposes the motion.
Court of Claims Act §10(6) allows a movant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act §10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act §10(6)). Movant's motion is timely (Court of Claims Act §10(6); CPLR §214(4)).

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative (
Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen 's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
The first factor, is whether the delay in filing the claim is excusable. Movant's counsel asserts that the delay is excusable because movant did not know the law, and he anticipated that his homeowner's insurance policy would cover the damage. Ignorance of the law is not an acceptable excuse (
Matter of Galvin v State of New York,176 AD2d 1185, lv denied 79 NY2d 753).
The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. These factors weigh against granting the application. Movant asserts that after the blasting he attempted to place all parties on notice of the damage to his home; however, it is not at all clear how movant placed the State on notice.

Prior to the blasting, the State sent a letter to movant advising of the "Route 37 Ogdensburg - Morristown Project" and what it would entail. The letter, dated October 16, 2000, indicated that if the homeowner had any questions or concerns to contact Ken Bibbins, the field engineer on the project, and his number was provided. The letter was signed by Gary G. McKinney, Assistant Regional Construction Engineer, and provided the regional Department of Transportation office address. Despite this information, it does not appear that movant notified anyone at the Department of Transportation or anyone else involved with the project. Instead movant notified his insurer, Travelers Insurance Company, obtained estimates from a contractor, David Gilmour, and had the home inspected by the Town of Morristown Code Enforcement Officer, Timothy Tuttle. Although the Code Enforcement Officer was accompanied by David L. Hall, a Senior Building Structural Engineer for the New York State Department of State Codes Division, there is no assertion that notice to this individual can be deemed notice to the State. As a result, the Court finds that based upon the facts, movant has not shown that the State had notice of the underlying facts leading to this claim or an opportunity to investigate. Moreover, given the passage of time, a year-and-a-half since the date of accrual, the State may be prejudiced by the granting of this application.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally, a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (
Santana v New York State Thruway Authority, 92 Misc 2d 1,11). Movant attaches to his application a copy of a report from Ronald E. Berry, an engineer with Tisdel Associates. Mr. Berry inspected the movant's property on March 29, 2001 and found that there was damage caused by the blasting activities on Route 37. Based upon this report, it appears to this Court that there is reasonable cause to believe that movant's proposed claim has merit.
The final factor is whether the movant has any other available remedy. Movant asserts that he has no other remedy. It may be possible for movant to sue the contractors who performed the work directly in Supreme Court for the damages he incurred. Thus, movant may have another remedy.

Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court DENIES the movant's motion to permit the late filing and serving of the claim.

October 24, 2002
Syracuse, New York
Judge of the Court of Claims

The Court has considered the following in deciding this motion:

Notice of Motion....................................................................................................1

Affirmation of Joseph E. Lamendola, Esquire, in support with all

exhibits attached thereto..................................................................2

Affirmation of Joseph R. Pacheco, II., Esquire, in opposition with

exhibit attached thereto....................................................................3

Memorandum of Law by Joseph R. Pacheco, Esquire.............................................4