New York State Court of Claims

New York State Court of Claims

VORPAHL v. THE STATE OF NEW YORK, #2004-033-063, Claim No. None, Motion No. M-68241


Synopsis



Case Information

UID:
2004-033-063
Claimant(s):
STUART BENNETT VORPAHL
Claimant short name:
VORPAHL
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-68241
Cross-motion number(s):

Judge:
James J. Lack
Claimant's attorney:
Stuart Bennett Vorpahl, Pro Se
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 25, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is a motion by Stuart Bennett Vorpahl (hereinafter "movant") for permission to file a late claim pursuant to Court of Claims Act §10(6)[1]. The proposed claim is for the alleged unlawful seizure of approximately 490 lbs. of fish by the Department of Environmental Conservation. In addition, movant asks the Court to award him five years of lost wages.

The alleged acts by the defendant occurred on August 14, 1998. The motion papers and the proposed claim are devoid of any facts as to understand why the alleged seizure occurred.

In order to determine whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act §10(6):

(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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State;

(5) whether movant has another available remedy; and

(6) whether the claim appears to be meritorious.

The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

Movant does not address the individual elements of Court of Claims Act §10(6). The Court will attempt to address the elements based upon the minimal support movant has provided. Movant offers no reasonable excuse as to why there was a delay in filing. The Court will attribute the delay to ignorance. Unfortunately, ignorance of the law by movant is not a reasonable excuse (see, Sevillia v State of New York, 91 AD2d 792).

The second, third and fourth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

Presumably since the defendant's employees seized the fish, then the defendant had actual knowledge of the events that took place on August 14, 1998. In addition, according to movant's papers, a criminal trial took place in East Hampton, New York.[2] The Court finds that these three factors favor the movant.

While the presence or absence of any one of the six factors in not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most critical factor always is the apparent merit of the proposed claim. The movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and 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). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant's request.

The proposed claim indicates that the movant's suit is based upon the seizure of the movant's fish in 1998. It appears that the movant's papers are suing on the basis of an intentional tort. Court of Claims Act §10(6) states :
A claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim 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.

According to CPLR 215 "an action against a sheriff, coroner or constable, upon a liability incurred by him by doing an act in his official capacity or by omission of an official duty . . ." is to be commenced within one year of the date of the occurrence. The Court finds that the movant's claim is without merit because it is brought after the statute of limitations ran on the movant's claim.

In conclusion, the majority of factors do not favor movant. Therefore, movant's application to file a late claim is denied.


June 25, 2004
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on movant's motion to file a late claim pursuant to Court of Claims Act §10(6): Notice of Motion dated March 23, 2004 and filed March 25, 2004; Affidavit of Stuart Bennett Vorpahl with annexed documents sworn to March 23, 2004 and filed March 25, 2004; Affirmation in Opposition of Todd A. Schall, Esq. dated April 20, 2004 and filed April 23, 2004; Answer to Affirmation in Opposition of Stuart Bennett Vorpahl sworn to April 26, 2004 and filed April 27, 2004.
[2]The Court notes that the trial in East Hampton, New York ended in a mistrial. The case was then transferred to the Town of Southampton. The charges were eventually dismissed by the justice in Southampton. According to the unmarked exhibit attached to movant's papers, the town justice felt sorry for the movant. There was never a determination of the criminal charges on the merits.