New York State Court of Claims

New York State Court of Claims

BALESTIRE v. NEW YORK STATE DEPARTMENT OF LABOR, #2003-016-068, Claim No. None, Motion No. M-66767


Claimant was denied permission to file late claim alleging that the State Department of Labor failed to execute a judgment against claimant's former employer.

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:
James Balestire
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 3, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of James Balestire for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, Mr. Balestire essentially alleges that the New York State Department of Labor failed to pursue a claim for unpaid wages against his former employer. Specifically, in his proposed claim, Balestire alleges the following:
I filed a claim with NYS Dept. of Labor claim #04-02-0487 against my former employer for unpaid wages, illegal deductions, returned checks for wages and reimbursements, and expenses due me. The Dept. of Labor did investigate, and did find my claim valid and true, and that my former employer did in fact owe me these monies. The Dept. of Labor informed me they would not seek full damages due me, they will submit only half my claim to my former employer, my former employer refused all Dept. of Labor requests, the Dept. of Labor took no action against my former employer. I never received any notices from the Dept. of Labor regarding my claim or its standing. I was notified by phone by the Dept. of Labor that they did obtain a judgement against my employer for the total amount owed me plus interest and penalties but refuse to execute the judgement. The Dept. of Labor did not use any of the resources of the State of New York or its laws to recover my [losses] and damages.

In order to decide 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) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first three factors – whether the defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, claimant argues that the Department of Labor had the "ample essential facts" of his claim as it found his claim against his employer valid. However, while the State may have been aware of Balestire's claim against his employer, it is undisputed that until the service of this motion on defendant on April 22, 2003, the State had no knowledge that Balestire was making a claim against it. It is unclear when Balestire's claim accrued,[2] but even if it was as late as September of 2002, I find that the notice/opportunity/ prejudice factors of the Act have not been met in this case.

As to an alternate remedy, as set forth below, it appears that the Department of Labor is attempting to execute a judgment against claimant's employer. For an excuse, claimant argues that he was given misinformation by various entities including the City of New York Court System and the New York Department of Labor. He does not elaborate on such misinformation other than to say that he was given the incorrect address for the Court of Claims. In short, he fails to offer a valid excuse for the purposes of the Act.

The final factor to be considered is merit. With regard to this factor, defendant explains that claimant initially filed a complaint against his employer – Long Island Trucking, Inc. -- with the New Jersey Department of Labor as he had been hired and worked at the company's South Kearny, New Jersey location. The New Jersey Department of Labor notified claimant that it could not serve a summons and complaint on Long Island Trucking as the South Kearny location was closed. The matter was then referred to the New York State Department of Labor under a reciprocal agreement between New York and New Jersey as the company had a Lindenhurst, New York office where the employer could be served. On September 27, 2002, the New York State Department of Labor sent the company an order to comply and on December 5, 2002, the Department sent a letter advising the company that legal action would be taken if payment was not made. See exhibit C to the June 10, 2003 affirmation of Grace A. Brannigan (the "Brannigan Aff."). According to defendant, on information and belief, the Department of Labor referred the matter to the New York State Department of Law, Labor Bureau on January 22, 2003, requesting a judgment against Long Island Trucking, and such judgment is in the process of being entered in the Suffolk County Clerk's Office. See ¶8 of the Brannigan Aff.

Despite the allegations in his proposed claim, Balestire concedes in his reply papers that a judgment against his employer is "in the process of being filed with the Suffolk County Clerks Office . . ."; his complaint seems to be the length of time it has taken to pursue his claim as he states "who knows how much longer this process will take . . ."

Moreover, even if defendant had failed to pursue the claim against Balestire's employer, no precedent has been found that would permit a cause of action for money damages in this Court because of such failure. In sum, I find that claimant fails to meet the standard set forth in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

For the foregoing reasons, having reviewed the parties' submissions[3], IT IS ORDERED that motion no. M-66767 be denied.

September 3, 2003
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]In his proposed claim, Balestire asserts that his claim accrued on March 25, 2002. In his reply papers, he asserts that it accrued in "September of 2002 when I was informed by the New York State Dept. of Labor that they would not be executing the judgment against my former employer." In support of this, he cites exhibit C to his reply papers, but a review of exhibit C shows that it is a copy of a letter to claimant's employer attaching an "Order to Comply" and directing the employer to make payment – not a notice to Balestire that the Department would not be executing judgment.
  3. [3]The following were reviewed: claimant's notice of motion with supporting affidavit and proposed claim; defendant's affirmation in opposition with exhibits A-D; and claimant's reply submission, denominated a "Motion to Deny [State's] Request to Dismiss."