New York State Court of Claims

New York State Court of Claims

LIGHT v. STATE OF NEW YORK, #2003-018-222, Claim No. 107052, Motion Nos. M-66329, M-66441


Synopsis


Claim No. 107052 is dismissed pursuant to Court of Claims Act §§ 10 and 11. Claimants, pursuant to Court of Claims Act § 10(6) are granted permission to file a late claim.

Case Information

UID:
2003-018-222
Claimant(s):
ROSE MARIE LIGHT and JAMES D. LIGHT
Claimant short name:
LIGHT
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107052
Motion number(s):
M-66329, M-66441
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ALEXANDER & CATALANO, LLCBy: Benjamin C. Rabin, Esquire
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
By: KENNEY, KANALEY, SHELTON & LIPTAK, L.L.P.Judith Treger Shelton, Esquire
Third-party defendant's attorney:

Signature date:
May 28, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This case comes before the Court on two separate motions. First, defendant brings a pre-answer motion to dismiss for lack of subject matter jurisdiction. Claimants oppose defendant's motion and bring a separate motion seeking permission to file a late claim.

Defendant argues that the Court does not have subject matter jurisdiction to hear the claim because claimants never verified the notice of intention which they timely served upon the defendant. Claimants admit that the notice of intention was not verified in accordance with Court of Claims Act § 11(b), which requires that both the claim and the notice of intention to file a claim "be verified in the same manner as a complaint in an action in the supreme court" (Court of Claims Act §11[b]). The claim, filed with the Clerk of the Court on December 9, 2002, was properly verified.

Court of Claims Act § 10(3) provides that a claim for unintentional tort must be filed and served within 90 days after the date of accrual, unless a notice of intention is served within those 90 days upon the attorney general, in which case the claim must be filed and served within two years from the date of accrual. In this case, although the claim fully complied with the requirements of Court of Claims Act § 11(b), it was not served and filed within 90 days of the date of accrual. The failure to verify the notice of intention to file a claim renders the claim untimely (see, Martin v State of New York, 185 Misc 2d 799; Vogel v State of New York, Ct Cl, unpublished decision of J. Patti, signed December 29, 2000, Claim No. 101994-A, Motion No. M-62382, UID No. 2000-013-0401). Here, defendant has timely raised the issue (See, Court of Claims Act §11(c); Vogel v State of New York, supra). The requirements of Court of Claims Act §§ 10 and 11 are jurisdictional and must be strictly construed. As a result the claim must be dismissed.
Turning to claimants' motion seeking late claim relief, Court of Claims Act § 10(6) allows a claimant, who has failed to serve a proper notice of intention or who has failed to timely file and serve a claim within the time frame set forth in Court of Claims Act § 10, to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10[6]). Claimants' motion is timely (Court of Claims Act § 10[6]; CPLR § 214[5]).

The Court will consider claimants' application in light of the six factors listed in Court of Claims Act § 10(6) and any other relevant factors. The presence or absence of any one factor is not determinative (
Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve the late claim. Defendant does not deny that these factors weigh in favor of granting the application.
The first factor is whether the delay in filing the claim is excusable. It is asserted that the reason the claim is late, is because the Court of Claims Act § 11(b) is unclear, resulting in claimants serving the defendant with an unverified notice of intention. This is not an acceptable excuse. As a result this factor must weigh against granting claimants' application.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. The proposed claim accrued on February 7, 2002. On February 28, 2002, claimants timely served a notice of intention, and then on December 9, 2002, claimants served a claim. Based upon the documents served upon the attorney general, the defendant had timely notice of the facts underlying the claim, an opportunity to investigate and will not suffer any prejudice if the Court permits the claimants to file and serve the late claim.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (
Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). Claimants have submitted a verified proposed claim and the affidavit of their attorney. The attorney's affidavit is given no weight in determining whether or not the proposed claim is potentially meritorious, since he has no personal knowledge of the facts (cf., Vermette v Kenworth Truck Co., 68 NY2d 714; Hasbrouck v City of Gloversville, 102 AD2d 905 affd 63 NY2d 916). The Court will rely on the proposed claim to address this factor. Based upon the allegations in the proposed claim, accepting them as true, claimants have minimally set forth sufficient facts to meet the Santana requirements.
The final factor is whether the proposed claimants have any other remedy available. It does not appear from the facts as alleged that claimants would have any other remedy.

Accordingly, based upon the foregoing claimants' application is granted. Claimants are directed to file and serve the proposed claim in accordance with the Court of Claims Act and all other applicable rules within 45 days of the date this order is filed with the Clerk of the Court.

May 28, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding these matters:

Notice of Motion (M-66329)..........................................................................1

Affirmation of Judith Treger Shelton, Esquire, in support, with

exhibits attached thereto......................................................................2


Affirmation of Benjamin C. Rabin, Esquire, in opposition with

exhibit attached thereto........................................................................3


Reply affirmation of Judith Treger Shelton, Esquire.......................................4


Notice of Motion (M-66441)...........................................................................5


Affidavit of Benjamin C. Rabin, Esquire, in support, with

exhibits attached thereto.......................................................................6


Affirmation of Judith Treger Shelton, Esquire, in opposition..........................7


Filed Documents:


Claim.................................................................................................................8