New York State Court of Claims

New York State Court of Claims

NEW CREATION v. THE STATE OF NEW YORK, #2004-031-085, , Motion No. M-63709


Claimant's application for permission to file a late claim is granted

Case Information

NEW CREATION FELLOWSHIP OF BUFFALO, INC. Caption has been amended sua sponte to show the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption has been amended sua sponte to show the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
Third-party defendant's attorney:

Signature date:
June 25, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed July 5, 2001;
2. Affirmation of Brian W. Raum, Esq., dated June 25, 2001, with attached exhibits;
3. Affidavit in Opposition of Frank G. Godson, Esq., sworn to January 20, 2004.With this motion, New Creation Fellowship of Buffalo seeks permission to file a late claim pursuant to §10(6) of the Court of Claims Act (the "CCA"). In its motion papers, Claimant alleges that it incurred damages as a result of the State's, or rather one of the State's contractor's conduct relating to "a road widening project on Genesee Street in Cheektowaga, New York" (Raum Affirm., Par. 3). According to Claimant, in April or May of 2000, one of Defendant's contractors, Hartford Paving Corp. ("Hartford") piled dirt, asphalt, concrete and stone on Claimant's property. They also dug large trenches. Claimant immediately complained and was promised by Hartford that their property would be restored. The property was not restored.

Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimant asserts that its delay related to its reliance on representations made by Defendant, or its contractor, that the property would be repaired. Claimant also asserts that it lacked an understanding of the time requirements of the Court of Claims Act. I find that this factor weighs in Defendant's favor. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing an application pursuant to § 10(6), and does not necessarily preclude the relief sought (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, supra).

Defendant, in opposition to this motion, points out that Claimant does have an alternative remedy; an action in Supreme Court against Hartford. In fact, it appears that Claimant has commenced such an action against Hartford (Godson Aff., Par. 6). This factor, therefore, also weighs in Defendant's favor.

The next three factors covering notice, opportunity to investigate and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). It appears from the attachments to Claimant's motion papers that Defendant was fully aware of the essential facts comprising this claim. Defendant does not contest this allegation, and, in fact, does not address these factors in its opposition to this motion. Accordingly, these factors are presumed to weigh in Claimant's favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024).

This brings us to the final, and what is often considered the most important factor, merit. Of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant, as it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective, and upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

In this matter, Defendant argues that the claim lacks merit because it was not the State that piled the debris and dug the trenches on Claimant's land, it was the State's contractor. Defendant maintains that this entity, Hartford, was an independent contractor and so the State is not liable for Hartford's wrongdoing. While it is true that there is a general rule that an owner is not liable for the negligence of an independent contractor, in this instance, the damage to Claimant's unappropriated land appears compensable under Highway Law § 30(14), which specifies that "[i]f the work of construction or reconstruction of any highway project shall cause actual damages to property not acquired . . . , the [S]tate shall be liable therefor." This section has been recognized as creating a "nondelegable duty" and simply requires Claimant to show that his property was damaged as a result of a road construction or reconstruction project (State of New York v Posillico, Inc., 277 AD2d 753). There is no requirement that any alleged negligent act or omission be directly attributable to the State (see DSS Enters. v State of New York, 162 AD2d 1027).

I find that, for the purposes of this application, Claimant has met the threshold for establishing that the proposed claim has the appearance of merit.

Finally, I note that Defendant also opposed Claimant's application on the grounds that Claimant's notice of motion requests permission to file a late "notice of intention to file a claim." (Claimant's counsel's affirmation referred to a late "notice of claim.") Defendant is correct that the CCA § 10(6) permits only the late filing of a claim. Defendant argues that this distinction is not just a matter of semantics because the proposed claim fails to contain "the items of damage or injuries claimed to have been sustained and the total sum claimed" as required by CCA § 11. However, Claimant alleged that debris was dumped and trenches were dug on its property and that it will cost $500,000.00 to restore the property to its original condition. Claimant also alleged that, in its present condition, the property cannot be developed as planned. Defendant has provided no authority that this information regarding the injuries sustained is not specific enough. I find that the proposed claim, though improperly named, adequately meets the requirements of CCA § 11.

Upon reviewing and balancing all of the factors enumerated in CCA §10(6), I find that they weigh in favor of granting Claimant's motion for permission to file a late claim.

Based upon the foregoing it is

ORDERED, that Claimant's motion for permission to file a late claim in this matter is granted. Claimant is, therefore, directed to file and serve a claim identical to the proposed notice of intention to file a claim submitted in support of this motion, except that the document filed shall be properly denominated a claim; and to do so in conformance with the requirements of CCA §§ 10, 11 and 11-a within sixty (60) days after this order is filed.

June 25, 2004
Rochester, New York

Judge of the Court of Claims