This is a motion by Stuart Bennett Vorpahl (hereinafter "movant") for
permission to file a late claim pursuant to Court of Claims Act
. 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
(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.
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
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
In conclusion, the majority of factors do not favor movant. Therefore,
movant's application to file a late claim is denied.