New York State Court of Claims

New York State Court of Claims

KLEKNER v. THE STATE OF NEW YORK, #2003-015-334, Claim No. 105186, Motion Nos. M-66631, CM-66761


State's motion for summary judgment dismissing the claim denied as having been made outside the time limit established for such motion in Court's preliminary conference order. However, State's motion to dismiss claim pursuant to CPLR 3211 (a) and (8) is granted and claim is dismissed as untimely. Claimant's cross-motion for late claim relief is granted with direction to serve a claim within 30 days.

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:
Steven M. Weinstein, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 25, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion for summary judgment pursuant to CPLR 3212 is denied. Defendant's motion pursuant to CPLR 3211 (a) (7) and (8) seeking dismissal of the claim is granted in part and denied in part and the claim is hereby dismissed. Claimant's cross-motion for an order granting late claim relief pursuant to Court of Claims Act (CCA) § 10 (6) is granted. The new claim shall be filed and served as directed herein. The claim seeks to recover damages for personal injuries sustained by claimant on July 4, 2001 on or near a hiking trail adjacent to the Devil's Tombstone Campsite which is located in Hunter, New York and operated by the New York State Department of Environmental Conservation (ENCON).

By motion filed April 3, 2003 defendant seeks an order pursuant to CPLR Rule 3211 (a) (7) and (8) and Rule 3212 dismissing the claim on the ground that the claim was not served within the time frames required in Court of Claims Act § § 10 (3) and 11 (a) and on the further ground that the claim fails to state a cause of action as the State is immune from liability pursuant to General Obligations Law § 9-103.

Claimant opposed the motion and cross-moved for late claim relief.

The Court will first address the defendant's motion for summary judgment. Pursuant to the authority provided by CPLR 3212 (a) the Court issued a preliminary order dated February 1, 2002 which directed that "any motion for summary judgment is to be served and filed within 60 days of the filing of the Note of Issue". Court records reveal that claimant filed the note of issue on January 24, 2003 and, therefore, the last day for either party to file a summary judgment motion was March 25, 2003. Since defense counsel did not submit a written request to extend the court ordered deadline for filing a summary judgment motion defendant's motion for such relief filed on April 3, 2003 is untimely (see, Corbi v Avenue Woodward Corp., 260 AD2d 255).

Defendant's motion, however, seeks further relief pursuant to CPLR 3211 (a) (7) and (8) which is not subject to the Court imposed deadline for the making of a motion for summary judgment. Specifically, defendant alleges that the claim is untimely in that it was not served and filed within 90 days of its July 4, 2001 accrual and, further, that the claim fails to state a cause of action as the State is immune from liability pursuant to General Obligations Law § 9-103.

As stated previously, claimant has cross-moved for late claim relief pursuant to Court of Claims Act § 10 (6). Defense counsel neither replied to the claimant's opposition to defendant's motion nor answered the claimant's cross-motion on or before the scheduled return date (May 7, 2003). Instead defendant mailed a letter to the Court dated May 7, 2003 which was received on May 9, 2003 and stated the following:
We are in receipt of two copies of claimant's notice of cross-motion which is in response to and in opposition to defendant's motion to dismiss the claim, returnable May 7, 2003. Both copies (both having been mailed on April 30th, 2003, one having been received on May 1st the other on May 2nd 2003) are untimely in light of the provisions of CPLR Rules 2103 (b) (2), 2214 (b) and 2215 in their opposition to defendant's motion and support of claimant's cross-motion.

CPLR Rule 2215 requires that a notice of cross-motion be served "[a]t least three days prior to the time at which the motion is noticed to be heard." Claimant's notice of cross-motion was served by regular mail and by overnight delivery on April 30, 2003. CPLR Rule 2103 (b) (6) requires that "[w]here a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period." Service by overnight delivery is complete upon deposit into the custody of an overnight delivery service. The interaction of the two sections related above required claimant to serve the cross-motion at least four days prior to the return date of May 7, 2003, a duty with which he complied by serving the motion on April 30th (Perez v Perez, 131 AD2d 451; see Siegel, NY Prac § 249, at 403 [3d ed]).

It does, however, appear that to the extent the affirmation of claimant's counsel in support of the cross-motion actually seeks to oppose the defendant's motion to dismiss it was served one day late. Since the defendant's notice of motion contained a seven day demand pursuant to CPLR 2214 (b) claimant was required to serve answering affidavits no later than seven days prior to the return date. Service by overnight delivery would add one day to that seven day period and, since the day of service is not included in the computation, claimant's opposition to the motion should have been served on April 29, 2003 using overnight delivery or April 25, 2003 if first-class mail were used. While claimant's submission may technically have been untimely the defendant did not formally oppose the cross-motion, including that portion of claimant's submission opposing the motion to dismiss. Nor does it appear proper for the Court to raise the timeliness of claimant's opposition sua sponte, particularly where no obvious prejudice resulted from the delay.

By counsel's own admission contained in his letter of May 7, 2003 the cross-motion (including its opposition to defendant's motion) was received by the defendant on May 1, 2003 which clearly afforded adequate opportunity to respond before the return date of the motion or to timely seek an adjournment of the cross-motion (see, Plaza 400 Owners Corp. v Resnicoff, 168 Misc 2d 837). Instead, defense counsel chose to argue the alleged untimeliness of the cross-motion in a letter which was not received by the Court until two days subsequent to the return date. Accordingly, the Court denied defense counsel's letter request for an adjournment, has considered claimant's arguments in opposition to the motion to dismiss and will treat the cross-motion as unopposed.

The claim was filed with the Court and served upon the Attorney General on November 8, 2001. Claimant's counsel argues that the time for filing a claim which would ordinarily have expired on October 2, 2001 (Court of Claims Act § 10 [3]) was extended by the terms of Executive Order 113.7 entitled "Temporary Suspension and Modification of Statutory Provisions Establishing Time Limitations on Actions and Time in which to Take an Appeal." The Executive Order was signed by Governor Pataki on September 12, 2001 following the World Trade Center tragedy and temporarily suspends statutes:
establishing limitations of time for the filing or service of any legal action, notice or other process or proceeding that the courts lack authority to extend through the exercise of discretion, where any limitation of time concludes during the period commencing from the date that the disaster emergency was declared pursuant to Executive Order Number 113, issued on September 11, 2001, until further notice.
The provisions of Executive Order 113.7 expired at 11:59 p.m. on October 12, 2001 pursuant to Executive Order 113.28 except to the extent that they were continued until November 8, 2001 with respect to certain specified statutes as applied to persons "directly affected by the disaster emergency."

In opposing the motion claimant asserts that he is a person directly affected by the disaster emergency and therefore the claim served and filed on November 8, 2001 was timely. As read and understood by the Court, however, the "person directly affected" language found at the concluding paragraph of Executive Order 113.28 is confined to persons relying upon the temporary suspension of the specific sections of law referenced therein. As section 10 of the Court of Claims Act is not explicitly addressed in Executive Order 113.28 the claimant may not claim the benefits of the remedial aspects of the Order. Since the claim was not timely filed under any rational reading of Executive Order 113.7 and the language terminating its effectiveness as of 11:59 p.m. on October 12, 2001 (Executive Order 113.28) the Court lacks jurisdiction and the claim must be dismissed (see, Byrne v State of New York, 104 AD2d 782, lv to appeal denied, 64 NY2d 607; Grande v State of New York, 160 Misc 2d 383). Accordingly, since defendant preserved its right to raise this jurisdictional defense by including it as the fifth defense in its answer, the motion is granted and the claim is dismissed. That portion of the defendant's motion which sought dismissal based upon application of General Obligations Law § 9-103 is denied as both academic in light of the dismissal of the claim on timeliness grounds and lacking in factual support.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy".

The cross-motion filed on May 5, 2003 is timely in that a claim for personal injuries negligently caused is governed by the three year Statute of Limitations set forth in CPLR § 214 (5).

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the claim appears to be meritorious, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuse offered for the failure to timely commence the claim was movant's unfamiliarity with the filing and service requirements of the Court of Claims Act and his mistaken belief that the extension of time for filing court papers following the World Trade Center disaster (Executive Order No. 113.7) remained in effect. It is settled that ignorance of the law is not an acceptable excuse (Matter of E.K. v State of New York, 235 AD2d 540; Sevillia v State of New York, 91 AD2d 792). Nor does the Court find movant's physical disability an acceptable excuse for his failure to initiate suit at an earlier date. It was not necessary for movant to travel to New York to retain counsel. This factor weighs against granting movant's application.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant alleges in his supporting affidavit that "[t]he defendant, THE STATE OF NEW YORK, its agents, servants and/or employees, were on the scene, and upon information and belief, interviewed any witnesses to the occurrence and are already in possession of the investigation records pertaining to the accident itself" (see, Claimant's Exhibit E). Thus, it appears that the State had both timely notice of the accident and an opportunity to investigate. The Court concludes that these factors weigh in favor of granting the application.

As to the issue of merit, the claim presents a potentially viable cause of action in negligence. In order to establish a meritorious claim it is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid claim exists (see, Rosenhack v State of New York, 112 Misc 2d 967; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In the Court's view movant has met that burden on the cross-motion.

As to the final factor, it does not appear that movant has any other remedy available under the circumstances.

A review of the record on the motion and the statutory factors lead the Court to conclude that late claim relief is appropriate. Accordingly, movant's motion is granted.

Movant is hereby directed to file a verified claim with the Chief Clerk of the Court and to serve a copy thereof upon the Attorney General's office either personally or by certified mail, return receipt requested, as provided in Court of Claims Act § 11 (a) (i) within 30 days of service upon him of a copy of this decision and order. Movant is advised that the proposed "notice of claim" [sic] submitted as part of the late claim application does not satisfy this requirement since it was submitted prior to the granting of the cross-motion.

The trial scheduled for July 17, 2003 is hereby adjourned and will be rescheduled at a conference held subsequent to movant's service and filing of the claim as provided herein.

June 25, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 28, 2003;
  2. Affidavit of Dennis M. Acton sworn to March 28, 2003 with exhibits;
  3. Notice of cross-motion dated April 30, 2003;
  4. Affirmation of Steven M. Weinstein dated April 30, 2003 with exhibits;
  5. Affidavit of Alon Klekner sworn to April 21, 2003 with exhibits;

Submitted but not considered:

  1. Memorandum [sic] of Dennis M. Acton dated May 15, 2003 with exhibits;
  2. Affidavit of Leonard A. Bouren sworn to May 12, 2003;
  3. Affidavit of Frederick Dearstyne sworn to May 8, 2003 with exhibits.