Movant's application for an order permitting service and filing of a late claim
pursuant to Court of Claims Act § 10 (6) is denied. The proposed claim
filed with the motion papers seeks $733.74 for damage to movant's 1998 GMC
pickup truck the driver side door of which was damaged on June 18,
between 1:00 and 2:30 p.m. at parking lot
H of the W. A. Harriman State Office Building Campus in Albany. According to
the allegations set forth in the proposed claim movant does not know
specifically what caused the damage but alleges that when he exited the truck at
approximately 1:00 p.m. he saw an OGS employee preparing to mow the lawn
adjacent to the truck and saw an idling mower nearby. When movant returned to
the truck at 2:30 p.m. he observed damage to the driver's side door of the
vehicle. The damage is not otherwise described in the claim or in movant's
supporting affidavit. Movant alleges ignorance of the filing and service
requirements of the Court of Claims Act and seeks late claim relief.
Defense counsel opposed the motion on the grounds that movant's delay of almost
four months prior to seeking late claim relief is inexcusable and that the claim
lacks merit since it is based upon mere speculation that the damage was caused
by an unnamed State employee in the performance of his or her duties.
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 first issue for determination upon a late claim motion is whether the
application is timely. Since the proposed claim asserts a negligence cause of
action, the three year Statute of Limitations set forth in CPLR § 214
applies and the motion is properly before the Court.
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 potential claim has merit, 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 advanced for the failure to timely serve and file a claim with
respect to the June 18, 2003 property loss is movant's ignorance of the
applicable legal requirements. Ignorance of the law is not an acceptable excuse
(Griffin v John Jay College, 266 AD2d 16) and this factor weighs against
granting the motion.
The intertwined issues of notice, opportunity to investigate and prejudice to
the State will be considered together. Movant reported the incident to OGS
employees within a week of the occurrence and information concerning the damage
to movant's personal property is memorialized in documents within the
defendant's possession thus negating prejudice (Remley v State of New
York, 174 Misc 2d 523, 524). Under these circumstances, the Court finds
that the factors of notice, opportunity to investigate and lack of prejudice
favor granting the motion.
As to the appearance of merit, the movant must only demonstrate that the
proposed claim is not "patently groundless, frivolous or legally defective" and
"there is a reasonable cause to believe a valid cause of action does exist"
(Rosenhack v State of New York, 112 Misc 2d 967, 969, 970).
Under the circumstances alleged on this motion it cannot be said that movant
appears to have a valid cause of action against the State of New York. The
proposed claim does not state the "precise nature of acts of State employees or
agents giving rise to liability" (Bonaparte v State of New York, 175 AD2d
683, 684). Moreover "[n]egligence of a defendant cannot be presumed from the
mere existence of an injury (Rella v State of New York, 117 AD2d 591,
592) and 'where there are several possible causes of injury, for one or more of
which defendant is not responsible, plaintiff cannot recover without proving [or
alleging] that the injury was sustained wholly or in part by a cause for which
defendant was responsible' (Ruback v McCleary, Wallin & Crouse, 220
NY 188, 195; accord Ingersoll v Liberty Bank of Buffalo, 278 NY
1)" (J.E. v Beth Israel Hosp., 295 AD2d 281, 284).
There are no known witnesses to the event which caused the damage to movant's
vehicle. The movant did not witness the event which gave rise to the damage
but, rather, asserts through mere speculation that the damage was suffered as a
result of the negligence of a State employee. The record is, however, devoid of
any factual basis to support movant's contention in this regard. In the
absence of a reasonable excuse for the failure to timely serve and file a claim
and in light of the highly questionable merit of the proposed claim, the court
declines to exercise its discretion to permit the filing of a late claim
(Gonzalez v State of New York, 299 AD2d 675; Perez v State of New
York, 293 AD2d 918). Accordingly, movant's application for such relief is
As to the final factor, it does not appear that movant has any other remedy
with respect to his property loss as his request to OGS to submit the claim to
the State Comptroller pursuant to the small claims procedure established by
State Finance Law § 8 (12-a) was denied.