Motion no. M-68227 is the Court's Order to Show Cause why claim no. 108604
should not be dismissed for lack of service on the State of New York.
Cross-motion no. CM-68730 is claimant's application for permission to file a
late claim pursuant to §10.6 of the Court of Claims Act (the
In the underlying claim, it is
alleged that on September 16, 2003, at the intersection of South Railroad Avenue
and Fremont Avenue in Richmond County, a New York State Department of
Transportation vehicle struck a parked car belonging to J.J.S. Transportation,
Inc. Section 10.3 of the Act requires that a claim such as this be served on
defendant within 90 days of accrual, i.e.
, in this case, by December 15,
2003. It is undisputed that to date, claim no. 108604 has not been served on
"It is well established that compliance with sections 10 and 11 of the Court of
Claims Act pertaining to the timeliness of filing and service requirements
respecting claims and notices of intention to file claims constitutes a
jurisdictional prerequisite to the institution and maintenance of a claim
against the State, and accordingly, must be strictly construed . . ." Byrne
v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984),
lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See
also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept
1993). In short, this Court lacks jurisdiction over claim no. 108604 because of
the lack of service on defendant.
As to claimant's late claim motion
factors enumerated in the Act must be considered: whether (1) defendant had
notice of the essential facts constituting the claim; (2) defendant had an
opportunity to investigate the circumstances underlying the claim; (3) defendant
was substantially prejudiced; (4) claimant has any other available remedy; (5)
the delay was excusable and (6) the claim appears to be meritorious. The
factors are not necessarily exhaustive, nor is the presence or absence of any
particular factor controlling.
The first three factors – whether defendant had notice of the essential
facts, had an opportunity to investigate or would be prejudiced by the granting
of this motion are intertwined and may be considered together. See Brewer v
State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998).
Defendant had no notice of this claim until J.J.S. Transportation filed and
served its motion papers on or about April 5, 2004, i.e., more than six
months after the collision. However, documentation concerning the incident
presumably exists (e.g., the police report annexed to the proposed claim)
which will allow defendant to investigate. Moreover, no prejudice has been
asserted by defendant. Overall, I find that these three factors have been
met. As to an alternate remedy, it appears that claimant's sole remedy lies in
this Court and thus this factor has been met. With regard to excuse, law office
failure is not a valid explanation for the purposes of the Act. See,
e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d
540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856
Finally, it must be determined whether the proposed claim appears meritorious.
It is undisputed that the driver of the State car collided with claimant's
parked car. Claimant has thus made out a prima facie case of negligence and it
will be defendant's burden at trial to "‘provide a nonnegligent
explanation, in evidentiary form, for the collision.'" Stringari v Peerless
, 304 AD2d 413, 757 NYS2d 554, 555 (1st Dept 2003) (citation
I conclude that claimant meets the
standard set forth in Matter of Santana v New York State Thruway
, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the
claim "must not be patently groundless, frivolous or legally defective" and (ii)
upon consideration of the entire record, including the proposed claim and any
exhibits or affidavits, "there is reasonable cause to believe that a valid cause
of action exists."
For the foregoing reasons, having reviewed the
IT IS ORDERED, with respect to
motion no. M-68227, that claim no. 108604 be dismissed. IT IS FURTHER ORDERED
that cross-motion no. CM-68730 be granted and that within forty-five (45) days
of the filing of this Decision and Order, J.J.S. Transportation, Inc. shall
serve and file its claim
and otherwise comply
with §§11 and 11-a of the Court of Claims Act.