New York State Court of Claims

New York State Court of Claims

ALLSTATE v. THE STATE OF NEW YORK, #2005-010-002, Claim No. NONE, Motion No. M-69226


Claimant's motion to serve and file a late claim is denied.

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):

Terry Jane Ruderman
Claimant's attorney:
CARL S. YOUNG & ASSOCIATESBy: Jeremy M. Poland, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 8, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on claimant's application for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Attorney's Affirmation in Opposition........................................................................2

Attorney's Reply Affirmation...................................................................................3

The proposed claim is based upon the allegation that at 8:30 a.m., on December 3, 2003 at 14th Avenue in Mount Vernon, the insured's 1994 Honda sustained damage in the amount of $4,399.72 when it came into contact with a vehicle owned and operated by defendant.

The determination of a motion for leave to file a late claim requires the Court to 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 presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the above six factors. Claimant's purported excuse of inadvertence for its failure to timely commence an action is not acceptable (see Powell v State of New York, 187 AD2d 848; Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854).

Most significant is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891). Notably, the proposed claim fails to allege how defendant was negligent and how such alleged negligence was a proximate cause of the alleged damage. Claimant's reply submission did not remedy such defect. Moreover, it has been conceded that claimant's insured had a stop sign at the intersection and she entered the intersection where she collided with the State vehicle (Motion Papers Ex. B; Reply ¶12).[1] Claimant's unsupported self-serving allegations are insufficient to establish the appearance of merit (see Klingler v State of New York, 213 AD2d 378 [claimant's unsupported opinion does not suffice to establish merit of their claim]).

Accordingly, upon weighing all the factors, claimant's motion for leave to serve and file a late claim is DENIED (see Qing Liu v City Univ. of N.Y., 262 AD2d 473).

February 8, 2005
White Plains, New York

Judge of the Court of Claims

[1] The insurance claim was denied on the basis that claimant's insured failed to yield the right-of-way (Motion Papers, Ex. C).