New York State Court of Claims

New York State Court of Claims

OSHO v. THE STATE OF NEW YORK, #2004-028-509, Claim No. NONE, Motion No. M-67743


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:
MADU, EDOZIE & MADU, P.C.BY: John Edozie, Esq.
Defendant's attorney:
BY: Glenn C. KingAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 8, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant's motion pursuant to §10(6) of the Court of Claims Act for permission to late file his claim:

1. Notice of Motion and Supporting Affirmation of John Edozie, Esq. (Edozie Affirmation) filed December 4, 2003, with annexed Exhibits A-C[1].
2. Affirmation in Opposition of Glenn C. King, Assistant Attorney General, (King Opposition), filed January 5, 2004 with annexed Exhibit 1[2]

3. Reply Affirmation of John Edozie, Esq. (Edozie Reply) filed February 2, 2004

4. Affidavit of Claimant, Olatunde Osho (Osho Affidavit) filed February 2, 2004


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 Movant's favor.

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 of merit.

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 late claim.

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.

March 8, 2004
Albany, New York

Judge of the Court of Claims

[1] Exhibit A of the moving papers is the proposed claim.
[2] Exhibit 1 is the affidavit of Darleen Halligan with annexed Exhibit A and will be referred to as "Halligan Affidavit"