New York State Court of Claims

New York State Court of Claims

MISCH v. THE STATE OF NEW YORK, #2004-028-551, Claim No. NONE, Motion No. M-68321


Synopsis



Case Information

UID:
2004-028-551
Claimant(s):
PAMELA J. MISCH
Claimant short name:
MISCH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-68321
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
THE JOYCE LAW FIRMBY: Elizabeth A. Garry, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: G. Lawrence DillonAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 13, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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


1) Notice of Motion and Supporting Affidavit of Elizabeth A. Garry, Esq. filed

April 13, 2004 with annexed Exhibits A-B;


2) Supporting Affidavit of Pamela J. Misch filed April 13, 2004 with

annexed proposed Claim;


3) Consent to Motion of Assistant Attorney General G. Lawrence Dillon
filed June 22, 2004.

The proposed Claim alleges that on October 8, 2003 Movant was injured when the vehicle in which she was driving was struck from behind by a vehicle operated by Mark C. Duthe. At the time of the accident, it is alleged, Duthe was operating a vehicle rented for him by his employer, the Defendant and that he was operating the vehicle in the course of his employment.

The Movant's request for permission to late file her proposed claim, a
s a threshold issue, is properly before the Court as the motion 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 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 (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)

Movant asserts that the instant application became necessary because the facts concerning Duthe's employment and the rental of the vehicle by Defendant did not surface until Movant's counsel wrote to the insurance carrier listed on the Police Accident Report - MV 104A (see Garry Affidavit Exhibit A) and a response was received indicating Defendant's involvement (see Garry Affidavit ¶¶ 5 and 8). The Defendant has consented to this application.

Notwithstanding Defendant's concession on the motion, the Court has reviewed the proposed claim. Movant has succeeded in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11).

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 Movant's motion for permission to late file a claim is granted. Movant is therefore directed to file and serve a claim identical to the proposed claim and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within sixty (60) days after this decision and order is filed.


August 13, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims