New York State Court of Claims

New York State Court of Claims

ALLSTATE v. THE STATE OF NEW YORK, #2004-030-597, Claim No. NONE, Motion No. M-69117


Synopsis



Case Information

UID:
2004-030-597
Claimant(s):
ALLSTATE INSURANCE COMPANYA/S/O ROY ZYLA
Claimant short name:
ALLSTATE
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-69117
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
CARL S. YOUNG & ASSOCIATESBY: JEREMY M. POLAND, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JOHN M. HEALEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
December 10, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 3 were read and considered on Claimant's motion


for permission to serve and file a late Notice of Intention (sic):

1,2 Notice of Motion; Affirmation by Jeremy M. Poland, Attorney for Claimant; Affidavit of Roy Zyla, Claimant's insured and attached exhibits

  1. Affirmation in Opposition by John M. Healey, Assistant Attorney General
After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Initially, the Court of Claims Act does not provide for an application to serve a late "Notice of Intention", but rather allows application for an Order granting permission to serve and file a late claim. See Court of Claims Act §10(6). This appears to be what was intended in this motion.

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 serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. 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 . . . " Court of Claims Act § 10(6). Here, the applicable statute of limitations is three (3) years, thus the motion is timely. Civil Practice Law and Rules §214.

Most importantly, a proposed claim must be submitted with the motion for permission to serve and file a late claim. Court of Claims Act §10(6). No proposed claim has been submitted with the papers.[1] On this ground alone the motion must be denied.

Additionally, although in his affidavit Claimant's insured indicates that he was involved in a collision with another vehicle on January 27, 2004 - owned, apparently, either by the New York State Department of Transportation or the New York State Thruway Authority - he does not indicate how the State was liable. Claimant's attorney only very generally avers that a truck crossed lanes of traffic, and refers to motor vehicle accident reports appended to his affirmation. [See Exhibits A and B].

Finally, none of the factors noted above that are required to be addressed in order for the Court to consider an application for permission to serve and file a late claim are discussed in the moving papers.

Accordingly, Claimant's Motion Number M-69117 is in all respects denied.

December 10, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]The "Notice of Claim" appended as an exhibit [Exhibit D] to Claimant's moving papers appears to be a document completed for the New York State Department of Transportation (hereafter DOT) by Claimant, and does not contain the information that would be necessary to comply with Court of Claims Act 11(b) and 22 NYCRR §206.6.