According to the proposed claim, this matter arose on April 16, 2001 when State
employees were removing a dead tree from the cliff above the gorge trail at
Watkins Glen State Park when "[a] portion of said tree broke off and fell into
the gorge, puncturing a hole in the roof of Claimant's building." (Proposed
Claim, ¶ 6). The proposed claim seeks to recover $13,523.03 in property
As a threshold matter, the Court notes that it has the jurisdiction to hear and
determine this matter since the motion was filed within three years from the
date of accrual which is the comparable time period for bringing negligence
actions against a citizen of the state. (CPLR 214; CCA 10 ).
The factors that the Court must consider in determining a properly framed CCA
10 (6) motion are whether:
1. the delay in filing the claim was excusable,
2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances
underlying the claim,
4. the claim appears to be meritorious,
5. 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
6. the claimant has any other available remedy.
The issue of whether the proposed claim appears meritorious has been
characterized as the most decisive component in determining a motion under CCA
10 (6), since it would be futile to permit a meritless claim to proceed.
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In
order to establish a meritorious claim, a claimant must establish that the
proposed claim is not patently groundless, frivolous, or legally defective and
that there is reasonable cause to believe that a valid claim exists.
(Id. at 11). It is well-settled that "[f]acts stated in a motion for
leave to file a late claim against the State are deemed true for purpose of
motion, when not denied or contradicted in opposing affidavits." (Sessa v
State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd
47 NY2d 976).
In opposition, the State sets forth several objections: (1) the lack of a
location description or address of the damaged building; (2) Claimant's failure
to include a supporting affidavit from someone with firsthand knowledge; and (3)
the verification of the proposed claim by Claimant's attorney.
With respect to the State's first argument, Claimant's response in reply is
that the motion papers contain "[m]ore than sufficient information with regard
to the place where the claim arose...." (Reply Affirmation, ¶ 4). Quite
simply, this Court disagrees. The requirement that the place where a claim
arose be stated with specificity is jurisdictional in nature. (Cobin v State
of New York
, 234 AD2d 498, appeal dismissed
, 90 NY2d 925, rearg
91 NY2d 849). Here, there is no street address contained in the
motion papers, rather only a reference to a "Timespell's building" in a letter
written by the Watkins Glen State Park
As noted by the State, the
connection between Timespell and Modern Textures, Inc. is not addressed. In
this Court's view, Claimant's failure to specify the place where this claim
arose, namely the location of the damaged building, requires this Court to
conclude that the proposed claim fails to comply with CCA 11 (b) and, thus lacks
the appearance of merit.
That having been said, the State's alternate arguments regarding the lack of a
proper verification and/or affidavit from someone with firsthand knowledge of
events also warrant discussion. Initially, the Court notes the requirement that
a claim, notice of intention, or proposed claim be properly verified is separate
and distinct from the need for the inclusion of an affidavit from someone with
personal knowledge. With respect to verification, the CCA requires that a
claim, and thus a proposed claim, "[b]e verified in the same manner as a
complaint in an action in the supreme court." (CCA 11 [b]; see also
10 ). Here, the proposed claim is verified by counsel because Claimant is a
domestic corporation with offices outside the county in which counsel maintains
an office pursuant to CPLR 3020. As such, the verification was in compliance
with the CPLR and CCA.
The State's objection to the lack of a supporting affidavit from someone with
firsthand knowledge is also without merit. Although the State is correct that a
proposed claim verified by counsel is useless in assisting the Court in the
determination of merit, Claimant's papers do include a verified, albeit
otherwise defective, "notice of claim" signed by a representative of Claimant
which generally could serve to meet Claimant's burden to establish the
appearance of merit. (Claimant's Exhibit B). However, because this document
fails to include an adequate description of the damaged building it cannot serve
as a basis for a finding of merit.
With respect to the remaining factors, Claimant's excuse that it did not
immediately seek the advice of an attorney due to its own investigation equates
to an ignorance of the law argument. Ignorance of the law is an unacceptable
excuse. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d
654). This factor weighs against Claimant.
Notice of the essential facts, opportunity to investigate and lack of
substantial prejudice comprise the next three factors and may be considered
together since they involve analogous considerations. Claimant argues the State
had actual notice and opportunity to investigate the same based upon a letter
received from the defendant on May 22, 2001.
(Claimant's Exhibit D).
The State does not address whether the park manager is of a sufficient
supervisory level to be deemed to have received such notice. (Avila v State
of New York, 131 Misc 2d 449, 450). Nevertheless, since Claimant has failed
to establish the connection between the so-called "Timespell's building"
mentioned in the park manager's letter and this Claimant, the Court cannot find
that the State - through the park manager - had notice and an opportunity to
investigate. With respect to the issue of prejudice, although there may well be
some prejudice to the State if the requested relief were granted, the State does
not argue that the prejudice would be substantial. Consequently, this Court
finds that notice and opportunity weigh against Claimant, while the factor of
prejudice weighs in its favor.
The last factor is whether Claimant has any other available remedy. Neither
party is able to identify any other available remedy. This factor weighs in
Accordingly, upon reviewing and balancing all of the factors enumerated in CCA
10 (6), the Court finds that four of the six factors, including the all
important factor of merit, weigh against Claimant's application.
In view of the foregoing, IT IS ORDERED that Claimant's motion for permission
to late file, Motion No. M-66184, is DENIED without prejudice to another
application on proper papers.