6) Affirmation in Further Support of Motion of Stephen Foreht, Esq., dated
February 6, 2003 and filed February 10, 2003.
The proposed Claim herein alleges that on October 31, 2001, the movant's
automobile suffered damages when it was hit by a vehicle being operated by a
member of the New York Army National Guard. The proposed Claim further states
that the contact was "...through intentional and wanton behavior, and with
reckless disregard to the safety and well [being] of those around him...".
(Proposed Claim annexed to Notice of Motion, p 1 [unpaginated]).
In order to determine whether an application for permission to file a late
claim should be granted, consideration should be given to the six factors listed
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 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). Rather, it is a
balancing by the Court of all of these factors which may determine the
The Court of Claims Act §10(6) enumerates six (6) factors to be considered
by the Court in determining whether to grant permission to file a late
(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 to serve a notice of intention resulted in substantial prejudice,
(6) whether the claimant has any other remedy.
In order to grant the instant application, the movant must substantially
fulfill the requirements of the above-quoted subdivision.
On the issue of delay, the attorney for Mr. DeSalvo asserts that he "timely
sought resolution of the matter within the administrative framework of the NYNG"
(Foreht Affirmation, p 3 para 10(a)). He offers no explanation for the
failure to serve the Notice of Intention in a timely fashion other than to
allude to the fact that the movant was pursuing an administrative solution.
Accordingly, the Court finds that this factor weighs against the movant.
In the initial papers, no argument was stated concerning the availability of an
alternate remedy – in fact, Exhibit 6 annexed to Mr. Foreht's Affirmation
indicates that he would file an action in Federal District Court. However,
later papers indicate that counsel later believed that no action would lie in
the U.S. District Court (Affirmation in Further Support of Motion, p 3
[unpaginated] para g). The failure of counsel to explain his reasoning as to
why an action does not lie under the Federal Tort Claims Act, compels the Court
to find that this factor weighs against the movant.
On the tripartite factors of notice, ability to investigate and prejudice, the
Court finds that they weigh in favor of the movant.
Of the six enumerated factors set forth in §10(6), it is the appearance of
merit which weighs most heavily, because it would be pointless to permit the
filing of a claim that did not appear to be meritorious (see e.g. Prusack v
State of New York, 117 AD2d 729). Unlike a party that has filed its claim
in a timely manner, a party seeking to file a late claim has a heavier burden of
demonstrating that the claim appears to be meritorious (see Witko v State of
New York, 212 AD2d 889, Nyberg v State of New York, 154 Misc 2d 199).
In the matter presently before the Court, the attorney for the Claimant
grudgingly admits that the State has waived its sovereign immunity only for
torts committed by members of the organized militia while acting within the
scope of their duties in the military services of the state, but not
where their members "...engaged in the active services of the state pursuant to
sections five, six or seven of the military law." (Court of Claims Act,
§8-a). Here the evidence submitted to the Court is clear and convincing
that Spc. Ramos was acting in active military duty status, pursuant to Military
Law §6, at the time of the accident (see Supplemental Affirmation in
Opposition, unlettered Exhibits).
The only issue which remains is whether the alleged actions of Spc. Ramos were
of such a nature as to take it out of the above exception. In support of his
argument that Spc. Ramos engaged in "reckless activity", Mr. DeSalvo's attorney
states that he is prepared to offer a "non-biased third party eyewitness" who
will testify as to the recklessness of the actions, as well as photographic
evidence supporting such testimony (Affirmation in Further Support of Motion, p
2 [unpaginated] para 4).
A review of all the papers submitted on behalf of the proposed Claimant
indicates that the only "proof" of reckless activity is contained in the Police
Accident Report prepared by Mr. DeSalvo (Notice of Motion, Exhibit 1). In it he
states that the vehicle driven by Spc. Ramos went through "a steady red light
doing high speed." Nowhere in the report does Mr. DeSalvo refer to the activity
as reckless. Similarly, all of the forms submitted by Mr. DeSalvo as well as
the submitted reference letters, do not refer to the actions as
The only item that contains the
term "reckless", "dangerous" and "criminal behavior" is the self-serving letter
submitted by Mr. DeSalvo's attorney (Exhibit 6, annexed to the Notice of
Therefore, the only proof of recklessness may be in the testimony of the
non-biased eyewitness referred to in the Affirmation of Further Support of
Mr. Foreht. However, such evidence cannot be evaluated since no affidavit of
that witness has been submitted to the Court.
In view of the nature of the present application, once the State has submitted
a defense (here immunity) the burden of going forward on the issue of merit
shifts to the movant to prove that this claim does not come within the ambit of
the immunity defense. In this way, it is similar to a motion for summary
judgment, in that the party having the burden must lay bare its proof. Here the
proposed movant has failed to do so by either submitting an affidavit from the
non- party witness, and/or by submitting the alleged corroborative photographic
evidence. Accordingly, the Court finds that the factor of merit weighs against
After weighing all of the above factors, the Court hereby denies the