New York State Court of Claims

New York State Court of Claims

GIL v. THE STATE OF NEW YORK, #2003-016-034, Claim No. None, Motion No. M-66281


Late claim motion was denied as unnecessary since infant claimant's time to file claim had not run.

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):

Alan C. Marin
Claimant's attorney:
Law Offices of Tonino Sacco, P.C.By: Tonino Sacco, Esq. and Luigi Brandimarte, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
April 21, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Plutarco Gil for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). It is alleged that on September 8, 2001, claimant "was electrocuted on the Sunnyside Train Yard in the County of Queens . . . As a result . . . [claimant] was caused to sustain severe, permanent injuries including . . .scarring over eighty-percent (80%) of [claimant's] body, and total loss of use of the right arm and hand." See ¶2 of the December 2, 2002 affirmation of Tonino Sacco. Ordinarily, in determining whether to grant this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant would be substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable; and (6) the claim appears to be meritorious.

In this case, a more fundamental issue – not raised by either party – must be addressed: whether this motion is necessary. Gil Plutarco was born on June 28, 1984. See ¶2 of the December 5, 2002 affidavit of Gil Plutarco. He thus reached his majority of eighteen years on June 28, 2002. Section §10.5 of the Act provides that "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." Mr. Plutarco thus has until two years after June 28, 2002, to bring a claim. Late claim relief is thus unnecessary and the parties' arguments as to whether this motion should be granted need not be reached. See, e.g.,, Moore v State of New York, Ct Cl dated 8/2/02, Collins, J. (unreported, motion no. M-65101).

Accordingly, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-66281 is denied; claimant has until June 28, 2004 to serve and file a claim.

April 21, 2003
New York, New York

Judge of the Court of Claims

  1. [1]The following were reviewed: claimant's notice of motion with affirmation and affidavit in support and exhibits A-H; defendant's affirmation in opposition; and claimant's reply affirmation.