4. Affidavit of Claimant, Olatunde Osho (Osho Affidavit) filed February
FILED PAPERS: None.
Movant seeks permission to late file a claim for negligence arising from his
arrest on December 5, 2002 by New York City police officers for driving with a
suspended license. Movant alleges Defendant failed to properly maintain its
records at the Department of Motor Vehicles regarding Movant's automobile
insurance resulting in the improper suspension of his license on December 1,
2002. Defendant opposes the application asserting there was no reasonable
excuse for the delay in filing and the proposed claim lacks merit.
As a threshold issue, the Court has jurisdiction to review and determine this
motion since it was timely filed within the relevant statute of limitations
provided by Article 2 of the CPLR.
It is well settled that the factors a Court must consider in determining a
properly framed Court of Claim Act §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 (see
Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace
Coop. Section IV v New York State Employees' Retirement System Policemen's &
Firemen's Retirement Sys., 55 NY2d 979, 981). The Court "is vested with
broad discretion to grant or deny a motion for permission to file a late claim
following the consideration of the statutory factors" (Gonzalez v State of
New York, 299 AD2d 675).
Movant offers as an excuse for the delay that the initial analysis of the claim
suggested that his insurance carrier was responsible for the error (Edozie
Affirmation ¶ 5) and that steps to proceed against the Defendant were
not initiated until May 9, 2003 when no response was received from the insurance
carrier (id. at ¶ 6). Defendant characterizes this excuse as
unacceptable amounting to "ignorance of the law" (King Affirmation ¶
4). Notwithstanding Movant's analysis of the claim, given the awareness that
the Department of Motor Vehicles was involved in the transactions, unexplained
by counsel is the delay between the demand on the insurance carrier on January
13, 2003 and the untimely service of a Notice of Intention on May 9, 2003. The
Court views this record as being tantamount to law office failure. Since law
office failure is not an adequate excuse for neglecting to comply with the
filing requirements of the Court of Claims Act (see Nyberg v State of
New York, 154 Misc 2d 199, 200; Szmulewicz v State of New York, 29
Misc 2d 298), this factor weighs against Movant's application.
The factors of notice, opportunity to investigate and prejudice are generally
viewed together. Here, Defendant has conceded these factors (King
Affirmation ¶ 5) and as such the Court finds these factors to weigh in
Turning to the issue of merit, this factor is often referred to as the most
decisive factor 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). Movant must establish the proposed claim is not patently groundless,
frivolous, or legally defective and that there is reasonable cause to believe
that a valid claim exists. (id. at 11). Movant need not establish a
prima facie case at this point, but rather the appearance of merit (see e.g.
Jackson v State of New York, Ct Cl, Midey, J., Claim No. NONE, Motion No.
M-64481, February 19, 2002, UID#2002-009-007) a standard which has been
described as a "low threshold" (Bernard v State of New York, Ct Cl, Bell,
J., Claim No. NONE, Motion No. M-61948, August 4, 2000, UID#2000-007-043).
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).
This Court has recognized an action for negligent representation involving what
can generally be described as ministerial recordkeeping errors involving the
Department of Motor Vehicles (see Sankara v State of New York, Ct
Cl, Sise, J., Claim No. 102035, Motion No. 63054, June 5, 2001 [unpublished
opn]; Davis v State of New York, Ct Cl, Sise, J., Claim No. 104493,
Motion Nos. M-66095, M-66099, February 3, 2004, UID #2004-028-504). In the
instant application, the question of merit is sharply contested. Movant
maintains his insurance agent/carrier in fact properly notified DMV of the
existence of valid insurance prior to December 1, 2002 (see generally Osho
Affidavit) and Defendant maintains proper steps were not followed until
December 6, 2002 (see generally Halligan Affidavit).
Mindful that Movant need not prove his claim at this juncture, on this record,
the Court is reluctant to deny Movant his day in court. Movant did attempt to
take steps to rectify the problem when it arose and appears to have enlisted his
agent/carrier to take the necessary steps to correct the situation before his
license was suspended. The lack of documentary evidence from Movant's
agent/carrier (Edozie Affirmation ¶ 6) may suggest his day in this
Court will be brief and his remedy elsewhere. However, that determination is to
be made another day and the Court therefore finds the claim has the appearance
Turning to the final factor of another available remedy, Movant states he does
not have one and Defendant has not suggested an alternative exists, which causes
this factor to weigh in favor of Movant.
Taking into account the six statutorily prescribed factors, the Court finds
them to weigh in favor of granting Movant's motion for permission to file a
Accordingly, the Court exercises its discretion and Movant's application for
permission to late file a claim is GRANTED to the extent set forth above.
Movant is directed to file and serve a claim identical to that proposed claim
annexed to the moving papers as Exhibit A, and to do so in conformity with the
requirements of Court of Claims Act §§ 10, 11 and 11-a within 45 days
of the date this Decision and Order is filed.