Movants' proposed claim (Bournazos affirmation, Exhibit F) alleges that on
January 24, 2004, as the vehicle in which the couple was riding approached the
Lincoln Tunnel, movant Anthony Martinelli, who was driving, was unlawfully
seized and arrested as a result of the negligence of the New York State
Department of Motor Vehicles (DMV). DMV, it is alleged, had imputed 14 different
traffic violations to him that were, in fact, issued to another individual, one
Antonio Martinez. Movant is a resident of New Jersey and has never possessed a
New York State driver's license. Antonio Martinez, to whom the tickets were
issued, is a resident of Freeport, New York.
This motion was brought approximately six months after the proposed claim arose,
and a like action against a citizen would not be barred by the applicable
statute of limitations (CPLR 214).
In determining a motion for permission
to file a late claim, the Court must consider, among
other relevant factors, the six factors set forth in subdivision 6 of section 10
of the Court of Claims Act: 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 to be
meritorious; 5) whether the failure to file or serve a timely claim or serve a
timely notice of intention resulted in substantial prejudice to the State; and
6) whether the movant has another available remedy. The Court in the exercise of
its discretion balances these factors. The presence or absence of any one factor
is not dispositive (Bay Terrace Coop. Section IV v New York State Employees'
Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d
Movants failed to timely initiate an action in this court because of law
office failure. On April 22, 2004, within the ninety-day time period for
commencing an action, a claim was served on DMV and filed with the Clerk of the
No copy of this claim was served on
the Attorney General. Movants' counsel asserts that the delay in properly
commencing the claim is excusable "in that it was inadvertent" (Bournazos
affirmation, ¶15). Neither ignorance of the law (Matter of Galvin v
State of New York
, 176 AD2d 1185 [3d Dept 1991], appeal denied
NY2d 753; Erca v State of New York
, 51 AD2d 611 [3d Dept 1976], affd
on opn below
42 NY2d 854) nor law office failure (Erca v State of New
; Sevillia v State of New York
, 91 AD2d 792;
Block v New York State Thruway Authority
, 69 AD2d 930 [3rd Dept 1979])
provides an acceptable excuse for failing to comply with the requirements of the
Court of Claims Act. Only gross negligence, malfeasance or inaction by an
attorney could potentially provide a litigant with an acceptable excuse for the
, discussion in Sessa v State of New York,
88 Misc 2d
454, 459-460, affd
63 AD2d 334, affd
47 NY2d 976).
assert that the State had notice of the essential facts constituting the claim
because a timely claim was served on the DMV. In the particular circumstances of
this case, where the client agency was undoubtedly aware that a serious mistake
had occurred and where it received timely notice that movants intended to
commence a lawsuit based on that mistake, the timely service of the claim on the
wrong office can serve to satisfy the statutory requirement of notice. In
addition, the cause of action is one that can be proven, or disproven, by
documents in existence and in the hands of defendant, so the passage of time has
not seriously impeded the ability of defendant to defend against the action.
Counsel for defendant does not contend that the State would suffer prejudice if
the requested relief is granted. Consequently, defendant's opportunity to
investigate the circumstances underlying the claim was not impeded, and
permitting the filing of an untimely claim would not result in substantial
prejudice to the State.
It appears that movant does not have an available
remedy against any party other than the State.
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 Auth.
92 Misc 2d 1 [Ct Cl 1997]).
With respect to the contention of defense
counsel that any such action is barred by the Third Department's decisions in
Williams v State of New York
(90 AD2d 861 ), as further refined by
Ford Motor Credit Co. v State of New York
(133 AD2d 980 ) and
Collins v Brown
(129 AD2d 902 ), that issue is best resolved after
the underlying facts have been fully developed. Even if an action may ultimately
be found to be without merit, once the facts are fully developed, the movant
should not be precluded from going forward at this early stage (Marcus v
State of New York
, 172 AD2d 724 [2d Dept 1991]).
account the six statutorily prescribed factors, the Court finds them to weigh in
favor of granting movants' motion for permission to file a late claim. Movants
are therefore directed to file and serve a claim identical to the proposed claim
submitted in support of this motion; 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.