New York State Court of Claims

New York State Court of Claims

LANTERI v. THE STATE OF NEW YORK, #2004-032-114, Claim No. N/A, Motion No. M-69057


Motion for permission to late file is granted where a claim, that was improper form, was returned to movant because it was considered a notice of intention and where the time in which a claim can be commenced as of right has expired.

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:
Goldberg & Allen, LLPBy: Jay K. Goldberg, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Saul Aronson, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 23, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

In this motion for permission to file an untimely claim (Court of Claims Act §10[6]), movant's proposed claim[1] (Goldberg affirmation, Exhibit A) alleges that on May 12, 2004, he was stopped by members of the New York City Police Department at a routine sobriety checkpoint near the Lincoln Tunnel. Although he had not been drinking, he was asked to pull his car over and, after a period of time, was arrested for driving with a suspended license. The suspension, he was told, arose from an outstanding summons issued in Ithaca, New York. Although he told the officers that he had never been to Ithaca, movant was taken to the police station, held overnight, and arraigned at approximately 4:00 P.M. the following afternoon. He pled not guilty and was released on his own recognizance. He subsequently established that a summons issued to one Benjamin Klein had been listed on movant's DMV records by a mistake.[2] Upon confirming the error, the Department of Motor Vehicles (DMV) corrected their records and sent a letter of apology to movant. This motion is brought less than a year 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 claimant 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 979 [1982]). A document captioned "In the Matter of the Claim of Joseph Lanteri" (hereinafter referred to as the "notice of intention" was filed with the Clerk of the Court and served on the Attorney General on July 26, 2004, within the 90 day period following movant's release from custody. Both documents were sent by certified mail, return receipt requested (Goldberg affirmation, Exhibits B, C). Because of the form and caption of the document and because it was not accompanied by a filing fee, the Clerk's Office considered it to be a notice of intention to file a claim and returned it to movant as unnecessary (id., Exh D). By the time movant's counsel had consulted with someone from the Clerk's office and learned of the problem, the 90 day period in which a claim could be commenced as of right had expired.[3] This motion ensued.

It is quite possible that this motion is unnecessary. If the Attorney General's office received movant's "notice of intention" and deemed it to be a notice of intention (as did the Clerk's office), then its service was both timely and proper, as it was served by certified mail, return receipt requested. Movant, therefore, may well have preserved his right to file and serve the claim anytime before May 13, 2006, two years after the date of accrual. Counsel may wish to consult with defendant to determine if this is what occurred. Because the Court has no direct knowledge of how the document was treated by the Attorney General and because defense counsel has not chosen to inform the Court, this motion will be decided on its merits.

Although movant does not have an acceptable excuse for failing to timely commence the action, timely service of the "notice of intention" on the Attorney General provided the State with legally adequate notice of both the essential facts constituting the claim and his intention to seek recovery for his injuries by means of a lawsuit. Consequently, defendant's opportunity to investigate the circumstances underlying the claim was not significantly impeded by the delay, and permitting the filing of an untimely claim would not result in substantial prejudice to the State.

Counsel for defendant argues that movant also has an alternative remedy in an action against the City of New York, as the arrest was carried out by City police. Such a cause of action would be problematic, however, because the police officers were responding, in an appropriate way, based on information provided to them by DMV. It is likely, therefore, that the City's actions might be protected by governmental immunity.

In addition, movant has succeeded in establishing that the proposed claim against the State of New York 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 1977]). The entire episode resulted from a ministerial error on the part of State employees, employees who had a duty to maintain accurate DMV records.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting movant's motion for permission to file a late claim. Movant is therefore directed to file and serve a claim that in substance is identical to the proposed claim submitted in support of this motion but is amended to have the proper caption and form. Movant is to file and serve the claim 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.

November 23, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim:

1. Notice of Motion and Supporting Affirmation of Jay K. Goldberg, Esq., with annexed Exhibits;

2. Affirmation in Opposition of Saul Aronson, Esq., AAG;

Filed papers: None

[1] The Court notes that, as discussed below, the claim is in improper form and, in addition to the State of New York, also names the City of New York, a defendant over which this Court does not have jurisdiction.
[2] Although movant is a resident of New Jersey and holds a New Jersey license, he had been assigned a New York State "client ID" number (Goldberg Affirmation, Exhibit E). The number assigned to movant matched the number on Benjamin Klein's driver's license (id., ¶ 3).
[3] The "notice of intention" was received by the Clerk's office on July 26, 2004. It was returned on August 10 and received by claimant's counsel on August 12. The 90 day period in which a claim had to be filed expired on August 11, 2004.