New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2003-028-519, Claim No. NONE, Motion No. M-66110


Case Information

NICANOR RODRIGUEZ The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
BERNS & CASTRO, ESQS.BY: Stephanie J. Rodin, Esq.
Defendant's attorney:
BY: Grace A. Brannigan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 10, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's application to file a late claim pursuant to Court of Claims Act §10(6):

1) Notice of Motion and Supporting Affirmation of Stephanie J. Rodin, dated November 29, 2002 and filed on December 2, 2002 with annexed Petition of Nicanor Rodriguez;

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 claim;

(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, and

(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 application.

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 [unpaginated]).

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 the application.

Based on the foregoing reasons, the Court denies the claimant's application to file a late claim.

March 10, 2003
Albany, New York

Judge of the Court of Claims