2) Affirmation In Opposition of Grace A. Brannigan, dated December 13, 2002 and
filed December 16, 2002 with annexed Exhibits "A" and "B".
Filed Papers – None.
The motion seeks to file a late claim pursuant to subdivision 6 of Section 10
of the Court of Claims Act. The Defendant opposes the application.
On April 9, 2002, Mr. Nicanor Rodriguez, the proposed Claimant, was a passenger
in a car driven by Yuberkis Perez. The vehicle came into contact with a New
York State Department of Correctional Services vehicle, driven by Eugene B.
White. As a result, Mr. Rodriguez alleges that he suffered personal injuries.
In order to determine if an application for leave to file a late claim should
be granted, the Court must consider six factors set in the Court of Claims Act
§10(6), as well as any other relevant factors. The existence or absence
of any one of these factors is not determinative (Bay Terrace Coop.
Section IV v New York State Employees' Retirement System Policemen's &
Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York,
207 AD2d 965). Rather, it is a balancing by the Court of all of these
factors which may determine the application.
The six factors to be considered by the Court in determining whether to grant
permission to file a late claim are:
(1) whether the delay in filing the claim was excusable;
(2) whether the State had notice of the essential facts constituting the
(3) whether the State had an opportunity to investigate the circumstances
underlying the claim;
(4) whether the claim appears to be meritorious;
(5) whether the failure to file or serve upon the attorney general a timely
claim or notice of intention resulted in substantial prejudice to the State,
(6) whether the claimant has any other remedy.
In the present case, the attorney for the movant has set forth no excuse for
his failure to timely file. Accordingly, since no reason has been proffered,
this factor weighs against granting the application.
Whether the claim appears to be meritorious is often referred to as the most
essential of all the six factors. Here the proposed Claimant has set forth no
facts – nor has he even stated that the Defendant was in any way negligent
– which would permit the Court to find that any merit existed. Similarly,
neither the Petition of Mr. Rodriguez, nor the Notice of Intention annexed to
the application, contain such facts. Accordingly, this weighs against granting
the requested relief.
The application is also deficient in that no physician's certificate of merit
has been annexed, nor has any objective medical evidence been submitted to
establish that Mr. Rodriguez has suffered any serious injury, as required by the
statute (see Insurance Law §§5102(d), 5104). Savino v State of New
York, 199 AD2d 254 (2d Dept 1993).
The application also fails to address whether an alternate remedy exists
– perhaps because an action against the driver of the host vehicle, Ms.
Perez, exists. Therefore, this factor weighs against the granting of the
Finally, the application addresses the tripartite factors of notice, prejudice
and opportunity to investigate. The attorney for the proposed Claimant argues
that the driver of the car, Ms. Perez, "...filed a Notice of Intention on May
16, 2002" (Attorney's Affirmation, p 3 para 7) and that, therefore, the
Defendant had notice of the facts giving rise to the instant claim, had an
opportunity to investigate it and will suffer no prejudice if the application is
granted. In support of his argument, counsel relies on DeFilippis v State of
New York, 157 AD2d 826, which granted permission to file a late claim under
circumstances which Claimant's attorney alleges were similar to the case
presently before the Court. In opposition to this point, the attorney for the
Defendant points out that no accident report has been filed with the Department
of Motor Vehicles by Ms. Perez, a document which Ms. Perez was required to file,
and upon which she is required to list passengers in her vehicle. Furthermore,
the plate number referred to in Ms. Perez's Notice of Intention, i.e., AZ8593,
does not match any State vehicle (Affirmation in Opposition, pp 4-5
In addition, the Court would note that the filing of a Notice of Intention has
not been required since August 2, 1995. The Court, therefore, keeps no record
of such filings and they cannot, therefore, serve as notice to a defendant.
Accordingly, the Court finds the present application distinguishable from
DeFilippis, supra, which was decided under the predecessor to
to Section 11 of the Court of Claims Act, that required filing a Notice of
Intention. Therefore, the Court finds that this factor weighs against granting
Based on the foregoing reasons, the Court denies the claimant's application to
file a late claim.