New York State Court of Claims

New York State Court of Claims

IRWIN v. THE STATE OF NEW YORK, #2003-015-372, Claim No. NONE, Motion No. M-67558


Court denied movant's application for late claim relief seeking to recover for damages to movant's vehicle while parked in State owned lot at State office building complex. State's negligence cannot be presumed from happening of the accident and claimant cannot recover without alleging and demonstrating that injury to property was caused by negligent act of State's officer, agent or employee.

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 A. Irwin, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 18, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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, 2003[1] 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 denied.

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.

December 18, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 22, 2003;
  2. Undated, notarized "Affidavit" of Steven A. Irwin with exhibits;
  3. Affirmation of Belinda A. Wagner dated November 3, 2003.

[1]Papers submitted on the motion list the date of damage as June 18, 2003 and June 19, 2003. For purposes of this motion the court has chosen to use the date specified in the proposed claim.