This is a motion of George Van Schenck (hereinafter "movant") for permission to
file a late claim pursuant to Court of Claims Act §10(6), based on libel,
slander and defamation of character in regard to an article in Suffolk Life
, a newspaper published in Suffolk
Movant alleges that Suffolk Life printed an article in the paper
accusing him of things with which he had nothing to do. The paper in printing
an article in which it stated twenty-two individuals were arrested as part of a
drug bust included movant's picture next to the story. Movant in his statement
alleges that the picture gives the impression he is a gang leader and that the
article has affected his children and their mother. The accusation of being
associated with gang related activities he claims has also destroyed his chances
of returning to his job.
Movant states that on January 13, 2003 he was arrested on an out of state
warrant from Florida by a U.S. Marshal. The next day, he was arraigned in
Central Islip and released on his own recognizance on the Florida warrant. As
he was leaving the Court, he was taken into custody by Suffolk County Police
detectives and charged with four robberies. He was subsequently transported to
the Suffolk County Jail where he presently resides.
In order to determine whether to grant a timely made application for permission
to file a late claim, the Court must consider, among any other relevant factors,
the six statutory factors set forth in Court of Claims Act §10(6):
(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 a timely claim or serve a timely notice
of intention resulted in substantial prejudice to the State; and
(6) whether the movant has another available remedy
The Court in the exercise of its discretion balances these factors, and, as a
general rule, the presence or absence of any one factor is not dispositive
(Bay Terrace Coop. Section IV v New York State Employees' Retirement System
Policemen's and Firemen's Retirement System, 55 NY2d 979).
Movant attributes the failure to timely file a claim to the fact that he is not
a lawyer and he had no access to legal counsel or to the prison library.
Incarceration has been found to be an inadequate excuse (Hall v State of New
York, 85 AD2d 835).
The second, third and fifth factors (notice of the essential facts constituting
the claim, an opportunity to investigate the circumstances underlying the claim,
and whether the delay resulted in substantial prejudice to the State) are
related. The Court will consider these factors together.
Since movant makes his allegation of slander, libel and defamation against
Suffolk Life the State did not have notice of the essential facts or an
opportunity to investigate the circumstances underlying the claim. Therefore,
the State would be prejudiced.
While the presence or absence of any one of the six factors is not dispositive,
(see Bay Terrace Coop. Section IV v New York State Employees' Retirement
System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most
critical factor always is the apparent merit of the proposed claim. The movant
need only establish that the proposed claim is not patently groundless,
frivolous or legally defective and there is reasonable cause to believe that a
valid cause of action exists (Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the
claim is patently without merit it would be meaningless and futile for the Court
to grant the application even if all the other factors in Court of Claims Act
§10(6) weighed in favor of the movant's request.
In the instant case, movant has failed to attach a proposed claim to his motion
papers. Movant's claim appears to be against Suffolk Life for slander
and libel. He is seeking money damages and an apology. His papers do not
contain any allegations of wrong doing on the part of the State. It appears
that this Court does not have jurisdiction in this matter (Court of Claims Act
§9) and that the New York State Supreme Court would be the appropriate
Court to hear this case
Movant has also failed to provide the Court with a proposed claim. In sum he
has failed to provide the Court with evidence of any wrongdoing on the part of
the State. His claim appears to be against Suffolk Life and thus, the
Court is unable to find an appearance of merit to this claim.
Accordingly, the Court concludes that the majority of the statutory factors
weigh against movant's application. Therefore, movant's application for
permission to file a late claim is denied.