New York State Court of Claims

New York State Court of Claims

LASSITER v. STATE OF NEW YORK, #2004-018-317, Claim No. None, Motion No. M-68038


Permission to file late claim is granted.

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:
Poklemba, Hobbs & Ulasewicz, LLCBy: Thomas A. Ulasewicz, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Peter A. Sparagna, EsquireAssociate Attorney
Third-party defendant's attorney:

Signature date:
July 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings this motion seeking permission to file a late claim as a result of the

State's denial of the company's asserted timbering rights on property acquired by the State. Defendant strenuously opposes the motion.

Court of Claims Act § 10(6) allows a movant, who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act § 10, to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act §10[6)]). Movant's motion is timely (Court of Claims Act §10[6]; CPLR §213). It is also required that a copy of the proposed claim accompany the late claim motion (Court of Claims Act §10[6]). Movant has attached to the moving papers the claim (Appendix B) previously filed, but dismissed as untimely (Decision and Order filed April 14, 2003 [Claim No. 105613. Motion No. M-64933]). The Court will treat this claim as the proposed claim for purposes of this motion (see Syndicate Bldg. Corp. v City University of New York, 151 Misc 2d 492, 495 n. 2; Clarke v State of New York, Ct Cl, unpublished decision of Lebous, J., signed November 19, 2001, Cl. No. None, Motion No. M-64061, UID # 2001-019-576).

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10(6), and any other relevant factors. The presence or absence of any one factor 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). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

The first factor, is whether the delay in filing the claim is excusable. Movant's counsel argues that the delay is excusable because this is an action for the taking of a real property interest, an appropriation claim. Pursuant to Court of Claims Act § 10(1), an appropriation claim only needs to be filed within three years of the date of accrual, and there is no provision for the service of a notice of intention. Movant maintains that as an appropriation claim, the claim previously dismissed was timely since no notice of intention was authorized and in any event, the previously filed claim was served and filed within 15 months after the date of accrual, well within the six-year statute of limitations for contract actions (Court of Claims Act §§ 10[1], CPLR § 213). Although this Court can certainly appreciate a respectful dissent to its earlier decision dismissing the previously filed claim as untimely, Movant's indignant position that the prior claim was timely, is not an acceptable excusable (see, Matter of Galvin v State of New York, 176 AD2d 1185, lv denied 79 NY2d 753; Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854; Modern Transfer Co. v State of New York, 37 AD2d 756; Royal Insurance Co. of Am. v State of New York, 149 Misc 2d 531). Moreover, Movant offered nothing to explain the almost 10 month delay in bringing this motion after this Court's Decision and Order dismissing the prior claim.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. These factors all weigh in favor of granting Movant's application. Movant inquired about its timbering rights with the State by letter dated and delivered February 4, 1999, resulting in the State's responding correspondence dated October 27, 2000, disputing Movant's rights. Additionally, Movant and the State had several meetings and exchanged correspondence involving the asserted timbering rights on this property. A claim was filed and served on February 15, 2002, fully apprising the State of Movant's position. Thus, these various components provided notice, an opportunity to investigate, and will result in no prejudice to the State should the Court grant Movant's application.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). Movant has attached to the moving papers, various documents which, for purposes of this motion, establish the appearance of a meritorious claim. Although Defendant maintains that Movant's rights have been extinguished by the flooding of some portion of the property, the determination of this issue must be decided at trial. Movant has met the threshold for finding that this factor has been met.

The final factor is whether the movant has any other available remedy. It does not appear that Movant has any other remedy.

Accordingly, upon balancing all of the factors in Court of Claims Act § 10(6), this Court GRANTS the movant's motion to permit the late filing and serving of the claim. Movant is directed to file and serve the claim attached to the motion papers within 30 days of the date this decision and order is filed with the Clerk of the Court. Service shall be in accordance with the Court of Claims Act and all other applicable Court rules.

July 20, 2004
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion.................................................................................................1

Affirmation of Thomas A. Ulasewicz, Esquire in support,

with exhibits attached thereto..................................................................2

Affidavit of Peter A. Sparagna, Esquire, Associate Attorney, in opposition,

with exhibits attached thereto..................................................................3

Reply Affirmation of Thomas A. Ulasewicz, Esquire in support,

with exhibit attached thereto....................................................................4