New York State Court of Claims

New York State Court of Claims

DESALVO v. THE STATE OF NEW YORK, #2003-028-524, Claim No. NONE, Motion No. M-65919


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:
Defendant's attorney:
BY: Grace A. Brannigan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 12, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court in reaching its decision on the claimant's application for permission to file a late claim:

1) Notice of Motion dated October 17, 2002 and filed October 18, 2002;

2) Affirmation of Stephen R. Foreht, Esq., dated October 17, 2002 and filed October 18, 2002 with Exhibits "1-6" and "A-E" annexed;

3) Affirmation in Opposition of Grace Brannigan, Assistant Attorney General, dated November 6, 2002 filed November 7, 2002 with annexed Exhibits "A-C" annexed;

4) Affirmation in Further Support of Motion of Stephen Foreht, Esq., dated November 7, 2002 and filed November 12, 2002 with Exhibit "F" annexed;

5) Supplemental Affirmation in Opposition of Grace A. Brannigan, Assistant Attorney General, dated December 20, 2002 and filed December 23, 2002 with two unlettered exhibits annexed;

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 application.

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 claim:

(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 to serve a notice of intention resulted in substantial prejudice, and

(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).[1]

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 reckless.[2] 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 Motion).

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 the movant.

After weighing all of the above factors, the Court hereby denies the application.[3]

May 12, 2003
Albany, New York

Judge of the Court of Claims

[1] The Court finds that the documentation submitted by the State sufficient on this point, and discounts the alleged irregularities cited by the attorney for the proposed Claimant.
[2] Neither was any ticket issued for reckless activity by the officers who responded to the accident scene.

[3] In view of this Court's decision, it has not amended the caption.