New York State Court of Claims

New York State Court of Claims

WHITE v. THE STATE OF NEW YORK , #2004-030-540, , Motion No. M-68161


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:
Third-party defendant's attorney:

Signature date:
June 29, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 5 were read on Claimant's motion for permission to

serve and file a late claim pursuant to Court of Claims Act § 10(6):
1, 2 Notice of Motion, Motion for Permission to file a Late Claim by Willis White (sic)

3,4 Notice of Intention, Claim
5 Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibit

After carefully considering the papers submitted and the applicable law, the motion is disposed of as follows:

This is the motion of Willis White for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act. Presumably, the "claim" attached to Claimant's papers is intended to serve as the proposed claim. It is difficult to discern what incident is the basis for this alleged bailment claim, if it is such a claim. The Claimant has included receipts for some items, but failed to further explain what items he is missing and how his property was lost.

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in § 10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available.[1] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive. Bay Terrace Coop Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . ." § 10(6) of the Court of Claims Act. Here, the applicable statute of limitations- assuming what is asserted is a bailment claim - is one hundred twenty (120) days after the exhaustion of his remedies. See Court of Claims Act § 10(9). He states a date of accrual of September 29, 2003. It is noted that he asserts service of a Notice of Intention to file a claim on December 29, 2003, but includes an affidavit of service indicating a notice of intention was served on the Attorney General on June 5, 2003, before the date of accrual alleged. The Assistant Attorney General indicates that the present motion papers were received on January 16, 2004. As an initial matter, it appears that the motion is premature.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exits. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant 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, Claim No. NONE, Motion No. M-64481 (Midey, J., filed February 28, 2002).

As noted, Claimant's motion is premature. In addition, the Claimant failed to include the details required by the Court of Claims Act § 11(b) and therefore failed to satisfy the jurisdictional prerequisites of the act. Finally, Claimant has not addressed any of the factors required by Court of Claims Act § 10(6).

Accordingly, these papers are inadequate on their face and the Court therefore denies Claimant's motion for permission to file a late claim.

June 29, 2004
White Plains, New York

Judge of the Court of Claims

[1]The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant's favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978) ["Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . ( citations omitted)."]