Claimant alleges that a vehicle owned by the New York State Thruway Authority
struck the vehicle owned by the Claimant insurance company's subrogors, Nancy
and Benny Almodovar on or about January 1, 2003. A Notice of Intention to file
a claim was served on the State of New York - the named Defendant herein - on or
about September 26, 2003. [Affirmation in Support of Defendant's Motion to
Dismiss, ¶ 3, Exhibit A]. A document entitled Verified Claim was served by
regular mail on the New York State Thruway Authority on September 22, 2003.
[Affirmation in Support of Defendant's Motion to Dismiss, ¶ 9, Exhibit
An Amended Verified
upon the State of New York on or about
November 10, 2003, and filed at the same time.
In its Answer - which is responsive to the Amended Verified Claim - in addition
to general denials, Defendant raises five affirmative defenses. The Third and
Fifth Affirmative Defenses assert that the Court lacks jurisdiction over the
claim because Claimant failed to timely file and serve the Claim upon the
Attorney General either personally, or by certified mail, return receipt
requested. Court of Claims Act §§10 and 11. The Fourth Affirmative
Defense alleges that the Claim fails to state a cause of action against the
State of New York since the vehicle which allegedly struck the Almodovar vehicle
was not owned, operated or maintained by the named Defendant, the State of New
As conceded by Claimant, the Notice of Intention was not served within ninety
(90) days of accrual of the claim, [See Affirmation by Frank G.
D'Esposito, Page 1], and thus did not operate to toll the limitations period.
See Court of Claims Act, §10(3).
Accordingly, although the Verified Amended Claim may have been served upon the
State of New York and the New York State Thruway Authority, by certified mail,
the Court lacks jurisdiction over the claim because it is untimely.
Additionally, service of the Verified Claim by regular mail upon the State of
New York and the New York State Thruway Authority was also insufficient to
confer jurisdiction over the claim.
Finally, the claims do not state a cause of action against the State of New
York, since they contain no allegations concerning the State.
In view of the foregoing, Defendant's motion to dismiss [M-69367] is hereby
granted, and Claim Number 108309 is dismissed in its entirety.
CROSS-MOTION FOR PERMISSION TO SERVE LATE CLAIM
Claimant moves for permission to file a late notice of intention against the
New York State Thruway Authority. The Court of Claims Act does not provide for
such relief, but rather allows a motion for permission to serve and file a late
claim. The purpose of the Notice of Intention, other than extending the time in
which to file a claim, is to provide notice to defendant within ninety (90) days
of the accrual of a claim. If the ninety (90) days has passed without action by
the potential claimant - either by properly serving a Notice of Intention or
serving and filing a Claim - then the sole remedy is to request permission to
late file a claim pursuant to Court of Claims Act §10(6). The court will
deem the instant motion as requesting such relief and will consider the Verified
Amended Claim as the proposed claim
connection with this application.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, "among other factors," the six factors set
forth in §10(6) of the Court of Claims Act. The factors stated therein
are: (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 meritorious; (5) whether substantial prejudice
resulted from the failure to timely serve upon the Attorney General a claim or
notice of intention to file a claim, and the failure to timely file the claim
with the Court of Claims; and (6) whether any other remedy is
The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim. See
e.g. Matter of Gavigan v State of New York
, 176 AD2d 1117, 1118 (3d
Dept 1991). The presence or absence of any particular factor is not dispositive
Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement
System Policemen's & Firemen's Retirement System
, 55 NY2d 979, 981
(1982); Broncati v State of New York
, 288 AD2d 172 (2d Dept 2001).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed ". . . 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 . . . " Court of Claims Act §
10(6). Here, the applicable statute of limitations is three (3) years, thus the
motion is timely. Civil Practice Law and Rules §214.
A claim appears to be "meritorious" within the meaning of the statute if it is
not patently groundless, frivolous or legally defective and a consideration of
the entire record indicates 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). Claimant need not establish a prima
facie case at this point, but rather the appearance of merit. See
e.g. Jackson v State of New York, Claim No. None, M-64481 (Midey, J.,
February 28, 2002).
Claimant offers no excuse for failing to timely and properly serve the Claim
upon the New York State Thruway Authority, thus this factor weighs against
Claimant. The absence of an excuse, however, is but one of the factors to be
considered, and does not necessarily preclude relief. Bay Terrace Coop.
Section IV, Inc. v New York State Employees' Retirement System Policemen's &
Firemen's Retirement System, supra.
The closely related factors of notice, opportunity to investigate and prejudice
to the State and the Thruway Authority, considered together, also weigh against
granting Claimant's motion. As pointed out by the Assistant Attorney General,
the police accident report does not suffice to show that the Thruway Authority
had notice of the subject accident and an adequate opportunity to conduct an
investigation. By themselves, accident reports do not constitute notice of the
essential facts of the claim. Chergotis v State of New York, 259 App Div
369 (3d Dept 1940). Additionally, the ineffective Notice of Intention never
found its way to the Thruway Authority, where it might have at least served as a
trigger to an investigation, even though it lacks detail as to how any act or
omissions by the Thruway Authority or its agents caused Claimant harm. The Court
also finds that the passage of time has been such that both the State's and the
Thruway Authority's ability to investigate are impeded to their prejudice.
Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and
two and one-half months from date of accrual). Accordingly, these factors
weigh against granting the motion.
As noted, Claimant need not establish its claim prima facie, but rather
show the appearance of merit. Jackson v State of New York, supra.
If the allegations in the Verified Amended Claim are accepted as true for the
purposes of the motion, Claimant has not made the requisite showing of merit in
order to permit late filing of its claim.
Initially, only the State of New York is named as defendant, and there are no
allegations whatsoever concerning any conduct by the named defendant or its
employees. With respect to the Thruway Authority as defendant, there is no
description of how the accident occurred, or of how the Thruway Authority or its
agents were negligent, indeed, there is no allegation of negligence at all. As
noted by the Assistant Attorney General, it is the attorney for the Claimant who
has verified the claim. There is no affidavit of merit, therefore, by someone
with knowledge of the facts of the claim.
The Court cannot ascertain whether the particulars of the claim are stated.
Court of Claims Act §11(b); See also 22 NYCRR §206.6.
Accordingly, Claimant's cross-motion [CM-69416] for permission to serve and
file a late claim is in all respects denied.