New York State Court of Claims

New York State Court of Claims

VERIZON v. THE STATE OF NEW YORK, #2004-019-534, Claim No. NONE, Motion No. M-68186


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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 8, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6).

This is a proposed claim seeking property damage in the amount of $7,406.27. On April 1, 2002, claimant alleges that State University of New York at Oneonta employees were repairing a water main break when they negligently damaged claimant's telephone equipment, facilities, cables, conduits, fixtures and appurtenances located near West Avenue in Oneonta, New York. (Proposed Claim).

As a threshold issue, the court notes that it has jurisdiction to review and determine this motion since it was filed within three years from the date this claim accrued. (CPLR 214).

The factors that the court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,
5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State, and

6. there is any other available remedy.

Claimant does not offer any explanation relative to the two year delay in filing a claim. Obviously, the lack of an excuse is insufficient and the court finds this factor weighs against claimant.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. Claimant contends that the State obtained actual knowledge of these essential facts from a letter sent by one of its claims administrator to the Office of the Attorney General dated May 5, 2002 and received on May 24, 2002. (Claimant's Exhibit A). Claimant's letter included the date of the loss, the location of the incident, and the nature of the claim. In this court's view, the State received actual notice of the essential facts hereof within the 90 day statutory period and thus an opportunity to investigate as well. With respect to substantial prejudice, the State makes reference to harm flowing from claimant's failure to cooperate with an investigation. (Affirmation of James E. Shoemaker, AAG, ¶ 13). However, the State has failed to provide any details regarding this allegation and, as such, the court is unable to draw any negative inference therefrom. Moreover, the State has not demonstrated to this court that it cannot now prepare and proceed to trial due to the delay nor does it argue that the delay in filing has generated an unfair advantage to the claimant. Accordingly, the court finds these three factors favor claimant.

Whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, claimant must show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe a valid claim exists. (Id. at 11). While this standard clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections nor does it suggest that the court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case. (Id. at 11-12).

The State contends that this proposed claim is conclusory in nature and unsupported by any documentary evidence. Further, the State questions whether the employees actually worked for the State University or were performing a construction job pursuant to the New York State Construction Fund which may only be sued in supreme court. Generally, in reviewing the allegations in the proposed claim any "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits [citations omitted]." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). Here, the court does not find claimant's allegations to be conclusory in nature and the State's remaining concerns are not raised by anyone with firsthand knowledge. (Matter of Powell v State of New York, 187 AD2d 848; Calzada v State of New York, 121 AD2d 988, 989). The court finds that claimant has satisfied the minimal threshold of establishing the proposed claim appears meritorious. (Marcus v State of New York, 172 AD2d 724, 724-725).

Finally, the State concedes and the court agrees that there is no alternative remedy available to claimant. This factor weighs in claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds that five of the six factors, including the all important factor of merit, weigh in claimant's favor.

Accordingly, for the reasons stated above, IT IS ORDERED, that claimant's motion for permission to permit the late filing and service of a claim, Motion No. M-68186, is GRANTED. Claimant shall file a claim with the Clerk of the Court and serve a copy of the claim upon the Office of the Attorney General within sixty (60) days from the date of filing of this Decision & Order with the Clerk of this Court. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the court including CCA 10, 11 and 11-a.

April 8, 2004
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-68186, dated March 10, 2004, and filed March 12, 2004.
  2. Affidavit of Edward C. Cosgrove, Esq., in support of motion, sworn to March 10, 2004, with attached exhibits.
  3. Proposed Claim.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated March 29, 2004, and filed March 31, 2004.