New York State Court of Claims

New York State Court of Claims

GOLDEN v. THE STATE OF NEW YORK, #2003-009-58, Claim No. NONE, Motion No. M-66827


Claimant's motion seeking permission to serve and file a late claim was denied.

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:
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 3, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Proposed Claim, with Exhibits 1,2

Affirmation in Opposition 3

Reply, with Exhibits 4

Upon a review of the proposed claim submitted by claimant, it is difficult to discern the particular State action, if any, which would warrant an award of damages to claimant. Claimant has set forth the following allegations in her proposed claim:

This claim arises from a frivolous action brought from the Town of Tully by Thomas Dadey and implemented by his relative James P. Murphy in the Supreme Court of the City of Syracuse. A hearing was held on November 20, 2002 from a motion to dismiss for fraud dated March 6, 2002. Upon Number Twenty Five of the affidavit Exhibit B for the hearing Joseph Sarno was subpoenaed to testily [sic]. Joseph Sarno upon reading the trial transcript told Cynthia A. Golden that she was duped. At the hearing Cynthia Called him first and she did ask him! Did you say that Cynthia A. Golden was duped? He Said No and committed perjury because he was told by Judge Tormey to Confuse [sic] Cynthia A. Golden. He did confess to that and did not want to lose his job.

The Court Reporter [sic] Debbie Dlugolecki did knowingly and willfully remove the evidence of perjury and further other statements made by the Judge for example: Judge Anthony J. Paris at the end said to the defendant, Cynthia A. Golden "You used your Mother" this was removed as well. Cynthia A. Golden was gong to bring an action in Federal Court. Judge Anthony Paris Barred Cynthia A. Golden from use of the court system without an attorney this order is in appeal with Rochester Fourth Department. [sic]

Claimant has allegedly asserted a claim for abuse of process, apparently arising from the hearing held on November 20, 2002, referred to above. She seeks damages in the amount of $400.00.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

Claimant has not provided any reason or explanation for her failure to properly and timely file and serve her claim, and therefore this factor weighs against granting her application.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Again, claimant has not addressed any of these factors, and from the Court's review of the papers submitted herein, it does not appear that the State had any notice of the essential facts underlying the claim, or any opportunity to investigate the circumstances surrounding this claim. Additionally, based upon the limited information submitted herein, should this application be granted it appears that the State would be substantially prejudiced should it have to defend this claim.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

As stated above, it appears that claimant has asserted a claim based upon allegations of an abuse of process. A cause of action for abuse of process has three essential elements: "(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano v Suozzi, 63 NY2d 113, 116).

In this matter, claimant has not alleged that any process has been issued, and the proposed claim does not contain any allegation of an intent to do harm. Accordingly, the proposed claim is legally defective and lacks the appearance of merit.

From the papers submitted herein and considered by the Court, it is not possible to determine whether claimant has any other available remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981) and none of the factors can require denial as a matter of law.

Therefore, after weighing and considering all of the factors under Court of Claims Act § 10(6), it is the opinion of this Court that claimant should not be allowed to serve and file her proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-66827 is hereby DENIED.

November 3, 2003
Syracuse, New York

Judge of the Court of Claims