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
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
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.