New York State Court of Claims

New York State Court of Claims

ONEBEACON v. THE STATE OF NEW YORK, #2003-019-509, Claim No. NONE, Motion No. M-66184


Claimant's motion for leave to file a late claim based upon alleged property damage to building is denied without prejudice due to Claimant's failure to provide adequate description of location of property.

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:
MEGGESTO, CROSSETT & VALERINO, LLPBY: Gary J. Valerino, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 28, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-66184, dated December 11, 2002, and filed December 19, 2002.
  2. Affirmation of Gary J. Valerino, Esq., in support of motion, dated December 11, 2002, with attached exhibits.
  3. Proposed Claim, dated December 11, 2002.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated January 8, 2003, and filed January 10, 2003.
  5. Reply Affirmation of Gary J. Valerino, Esq., in support of motion, dated January 13, 2003, and filed January 13, 2003.
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 damages.

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 [6]).

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 denied 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 manager.[1] 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 CCA 10 [6]). 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.[2]

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.[3] (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 Claimant's favor.

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.

January 28, 2003
Binghamton, New York

Judge of the Court of Claims

[1]A more detailed description of the original location of the subject tree "above the gorge" may or may not be within Claimant's knowledge and, in this Court's view, is not necessary for Claimant to meet the standard of specificity required by CCA 11 (b).

[2]This is not a case where the proposed claim is not verified at all as was the fact pattern in the case cited by the State. (MetLife Auto & Home Insurance Company, a/s/o Carol Cooper v State of New York, Ct Cl, January 15, 2002, Lebous, J., Claim No. None, Motion No. M-64250 [proposed claim unverified and failure to submit affidavit from anyone with firsthand knowledge]).

[3]Parenthetically, the Court notes that Claimant's alternative argument confuses the concept of notice of a dangerous condition relating to the burden of proof at trial as compared to establishing notice of the essential facts constituting a claim for the purpose of CCA 10 (6). The concept of notice in a late filing application relates to the State's notice of an accident after it has actually occurred, thereby permitting the State to investigate the claim if it so chooses. (Wolf v State of New York, 140 AD2d 692; Matter of Crawford v City Univ. of N. Y., 131 Misc 2d 1013). As such, whether the State knew or should have known of the alleged dangerous condition is not pertinent to a determination of whether the State had notice of the essential facts constituting a claim. Otherwise, in late filing motions, the State would be deemed to have notice of every claim arising from a dangerous condition it created or knew or should have known existed, even before an accident occurs.