New York State Court of Claims

New York State Court of Claims

LAROCCO v. THE STATE OF NEW YORK, #2004-009-33, Claim No. NONE, Motion No. M-68085


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:
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
May 24, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, with Exhibits 1,2

Affirmation in Opposition, with Exhibit 3

Correspondence from Claimant, dated March 4, 2004, with Attachment 4

Correspondence from Claimant, dated March 16, 2004 5

Pursuant to Court of Claims Act § 10(6), any application seeking permission to serve and file a late claim must be accompanied by a proposed claim. As correctly noted by defendant's attorney in his affirmation submitted in opposition to this motion (see Item 3), claimant has failed to submit such a proposed claim with his application, as required by statute. The failure to submit a proposed claim to claimant's motion papers is a sufficient basis for this Court to deny his application (see Grant v State of New York, unreported Decision and Order dated September 6, 2000, Read, P.J., Motion No. M-61919, UID No. 2000-001-049)[1].

The affidavit submitted by claimant in support of his motion, however, contains sufficient information and allegations for this Court to determine the basis of his claim against the State. In his affirmation submitted in opposition, defendant's attorney has also responded to the merits of claimant's application. Accordingly, this Court, in the interest of judicial economy and in fairness to both parties, will therefore also consider the merits of this application.

The Court, in its discretion, may authorize the filing of a late claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10[6]). In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein 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 meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

While the presence or absence of any one factor is not dispositive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979), the most critical factor is the apparent merit of the proposed claim (see, Plate v State of New York, 92 Misc 2d 1033). A claimant need only establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (see, Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a claimant 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 claimant's request (see, Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729).

In this matter, claimant alleges that he was falsely accused of cheating while taking and passing a "TABE" math test while an inmate at Mid-State Correctional Facility. Claimant alleges he was then forced to retake the test, which he failed and was therefore required to continue with his schooling at the facility. As indicated in his affidavit in support of this motion, claimant then filed a grievance, and when his grievance was denied, claimant filed an appeal and pursued this matter administratively. Claimant, apparently dissatisfied with the administrative determination, now seeks permission to serve and file a late claim. The claim is premised upon alleged violations of claimant's rights under the 8th Amendment and 14th Amendment of the United State Constitution[2].

It is well settled, however, that the Court of Claims does not have jurisdiction to hear claims alleging violations of federal Constitutional rights (Matter of Thomas v New York Temporary State Commission on Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656). As a result, any such claim seeking damages for such violations fails to establish a meritorious cause of action.

Therefore, based upon the fact that claimant failed to submit a proposed claim with his motion papers as required by Court of Claims Act § 10(6), and furthermore, due to the fact that claimant has failed to assert any potentially meritorious cause of action as required by § 10(6), claimant's motion seeking permission to serve and file a late claim is hereby denied.

Accordingly, it is

ORDERED, that Motion No. M-68085 is hereby DENIED.

May 24, 2004
Syracuse, New York

Judge of the Court of Claims

[1] Unpublished decisions and selected orders of the Court of Claims are available via the Internet at
[2] Claimant also makes reference to causes of action for "Harassment, verbal abuse, Slander, and Defemation of Carricktur" (sic) (see Item 2, Affidavit in Support, para 15). These conclusory allegations of negligence were not developed within claimant's affidavit (see Heisler v State of New York, 78 AD2d 767), and claimant relied solely upon those causes of action based upon alleged violations of federal Constitutional rights in the allegations contained in his supporting affidavit.