5 Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and
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.
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
, 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
, 55 NY2d 979, 981 (1982); Broncati v State of New York
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
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.