New York State Court of Claims

New York State Court of Claims

OGDEN v. THE STATE OF NEW YORK, #2003-028-539, Claim No. NONE, Motion No. M-66340


Case Information

TIMOTHY OGDEN, Individually and as parent and natural guardian of JASMINE OGDEN and IRIS OGDEN
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:
DUPEE, DUPEE & MONROE, P.C.BY: Jon C. Dupee, Esq.
Defendant's attorney:
BY: J. Gardner Ryan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 28, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant's application pursuant to Court of Claims § 10(6) for permission to late file a claim individually and on behalf of his two minor daughters:

  1. Notice of Motion and supporting affidavits of Jon C. Dupee, Esq., (Dupee Affidavit) and Timothy Ogden (Ogden Affidavit) filed January 30, 2003 with annexed Exhibits A-C;
2) Affirmations in Opposition of Assistant Attorney General J. Gardner Ryan (Ryan Affirmation) and Diane M. Deacon (Deacon Affirmation) filed March 3, 2003 with annexed Exhibits A and B

Movant seeks permission to late file a claim alleging negligence based upon the Defendant's failure to intervene on behalf of his daughters following reports of suspected child abuse to the New York State Central Register of Child Abuse and Maltreatment (Central Register) (see Social Services Law § 422) and asserts claims on behalf of himself individually and as parent and natural guardian of his infant daughters. Defendant opposes the motion.

At the outset the Court must agree with Defendant's assertion that a late claim motion is unnecessary for the claim of the infant Claimants (Ryan Affirmation ¶ 7). Court of Claims Act §10(5) provides that a claimant who is under a legal disability may present the claim within two years after such disability is removed. It has long been settled that infancy falls under the auspices of a disability for the purposes of this section (Barrett v State of New York, 161 AD2d 61, affd 78 NY2d 1111; Kaplan v State of New York, 152 AD2d 417; Weber v State of New York, 267 AD 325). The infant Claimants are well within the time period for the filing of a claim without the requirement of a late claim motion. Therefore, that portion of this motion concerning the infants, is denied as being moot (Porreca v State of New York, 28 Misc 2d 1098; but see Moore v State of New York, Ct Cl, Collins, J., August 2, 2002 , Claim No. NONE, Motion No. M-65101, UID #2002-015-277 [abuse of discretion to deny infant's application]).

Turning to that portion of the motion which addresses the claim of the Movant father, individually, the Court of Claims Act §10(6) provides the Court with the discretion to allow the filing of a late claim provided the Statute of Limitations as set forth in article 2 of the CPLR has not elapsed. In determining whether relief to file a late claim should be granted, the Court must take into consideration the factors set forth in §10(6) of the Court of Claims Act (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). They are whether (1) the delay in filing the claim was excusable; (2) the defendant had notice of the essential facts constituting the claim; (3) the defendant had an opportunity to investigate the circumstances underlying the claim; (4) the claim appears to be meritorious; (5) the defendant was substantially prejudiced; and (6) the claimant has any other available remedy.

In this instance, the Court need not address the familiar calculus to resolve the instant application. The movant father's individual application seeking damages for loss of services and out of pocket medical expenses, being derivative in nature, (see Auer v State of New York, 289 AD2d 626; Rizzo v State of New York, 141 AD2d 953; Burgarella v City of New York, 265 AD2d 361) "draws its life from the existence of the cause of action which inures to the benefit of the infant" (Karlsons v Guerinot, 57 AD2d 73, 81). For reasons of judicial economy, inter alia, it has been held that derivative claims may only be maintained if interposed in the underlying action for personal injury (see Clark v Campbell, 167 AD2d 750; see also Woodley v State of New York, 88 Misc 2d 889 ) and that such claims may not stand alone (Reilly v Rawleigh, 245 App Div 190). The posture of the instant application, assuming arguendo the application to late file were granted, would require this Court to place the cart [i.e., the derivative action] before the horse [ i.e., the daughters' personal injury claims]. In light of the foregoing policy, and in the absence of a filed claim by his daughters, resolution of movant's individual application for permission to late file a claim would be academic. The Court makes this finding mindful that the movant's individual claims are likely not subject to the tolling enjoyed by his daughters' claims.

Assuming arguendo the Court were to review this late claim application on its merits, and assuming arguendo that five of the six factors weigh in movant's favor, the decisive factor of merit (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [fruitless to permit meritless claim to proceed]) does not. The proposed claim fails to set forth, other than in the most conclusory terms, the actions of the State which constitute negligence or gross negligence (Sandlin v State of New York, 294 AD2d 723). Upon review, the proposed claim is devoid of any allegations, in light of the statutory scheme, that the State failed to forward the complaints received by the Central Register to the proper local services district (see Boland v State of New York, 161 Misc 2d 1019, affd 218 AD2d 235) or otherwise failed to discharge its statutory duties.

Accordingly, the Court must deny the father's application without prejudice.

For the foregoing reasons, the motion is denied in its entirety.

May 28, 2003
Albany, New York

Judge of the Court of Claims