In November 2001, movant retained counsel who served a notice of intention upon
the Attorney General’s Office on December 17, 2001 which indicated that
the accident took place on September 26, 2001. There is no time indicated for
the accident and the location is described as “Rte 347 and Myrtle Street
Mt. Sinai N.Y.”
A). On or about December 26, 2002, movant served a claim on the Attorney
General’s Office. This claim was never filed with the Clerk of the Court.
The Attorney General’s Office answered the claim on January 17, 2003.
Since the claim was never filed with the Clerk of the Court, no conference has
been held in this matter and the Court was not aware of this claim until the
instant motion was filed on September 23,
Movant’s reply papers rely on Sinacore v State of New York, 176
Misc 2d 1, for support. In Sinacore, the Court held that
claimant’s motion to file a late claim was unnecessary because the State
had not sufficiently raised a timeliness issue in its answer. Claimant sought
to sue the State for an act which accrued prior to April 11, 1995. During April
1995, claimant sent a letter to the Attorney General’s Office but the
Court held that the letter was insufficient to serve as a notice of intention.
Thereafter, claimant pursued an action in Federal Court which was dismissed in
the spring of 1997. Claimant then filed a claim on April 4, 1997. The Court
found that the claim was filed more than two years after it had accrued.
Despite claimant’s errors, the Court found that defendant had failed to
plead the defense of untimeliness (Court of Claims Act §11[c]) with
sufficient particularity and, therefore, waived the objections. During this
period claimant had moved for permission to file a late claim. As defendant had
waived the objections by failing to plead timeliness, the Court denied
claimant’s motion to file a late claim as unnecessary.
Unlike the claimant in Sinacore, movant has never filed the claim.
Movant correctly indicates that defendant never raised an affirmative defense as
to the timely filing of the claim. Arguably, had movant filed the claim with the
clerk’s office, then the ruling in Sinacore would apply. However,
there is no claim before the Court. If movant were to file the claim at this
point, it would be beyond the statute of limitations and the Court would be
unable to grant movant a judgment (Court of Claims Act §12(2)). Thus, even
if the Court were disposed to allowing movant to amend the notice of intention
nunc pro tunc, this remedy would then require movant to file his claim
beyond the statute of limitations.
Court of Claims Act §10(8) states
This section would allow movant to convert his timely served notice of intention
to a claim. While the full submission of the parties’ papers was beyond
the statute of limitations, movant’s original motion was filed two days
before the expiration of the statute of limitations. Therefore, the Court must
examine the notice of intention to determine if it contains facts sufficient to
constitute a claim pursuant to Court of Claims Act §11.
The requirements of the Court of Claims Act are jurisdictional in nature and
must be strictly construed (Lurie v State of New York, 73 AD2d 1006,
aff’d 52 NY2d 849). The purpose of these requirements is to give
the State prompt notice of an occurrence and an opportunity to investigate the
facts and prepare a defense. There must be sufficient detail to enable the
State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095,
aff’d 98 AD2d 902). Pursuant to the Court of Claims Act, a claim
must include the time when and place where the claim arose, the nature of the
claim, items of damage or injuries sustained as well as the total sum claimed.
If the original document does not include all that is essential to constitute a
claim, the document is jurisdictionally defective (Grande v State of New
York, 160 Misc 2d 383). The claim is subject to dismissal and “a lack
of prejudice to the State is an immaterial factor” (Byrne v State of
New York, 104 AD2d 782, 784, lv den 64 NY2d 607).
In Grande, claimant was involved in a motor vehicle accident when a tree
fell on his motor vehicle. Claimant identified the location as traveling along
Route 25A when a tree fell on his car. In another paragraph, claimant mentioned
the Village of Brookville. The court inferred that the accident happened on
Route 25A in Brookville. Given the lack of traveling direction, intersecting
roadways or any other landmark the court found the claim to be jurisdictionally
In the present case, the Court finds the notice of intention jurisdictionally
defective beyond the aforementioned wrong date. The notice of intention
indicates that movant’s accident was due to a “defected
roadway” (movant’s Exhibit A). There is no description of the
condition alleged. The notice of intention fails to list the time of day that
the accident occurred. In addition, the location is listed as “Rte 347
and Myrtle Street Mt. Sinai N.Y.” In examining the location, with the
Court’s current knowledge of a pothole being the defect, the Court finds
the location to be inadequate. There is no indication of movant’s
direction of travel, his distance from or presence in the intersection and the
precise location of movant’s alleged pothole as distinguished from other
potholes which may have existed. Further clouding the location, is the issue of
whether the roadway is Route 347 or Route 25A as previously described. The
Court is unable to convert movant’s notice of intention to a claim.
Movant’s remaining remedy is to receive permission to file a late claim
pursuant to Court of Claims Act §10(6).
In determining a motion seeking permission to file a late claim, the Court must
consider the following six enumerated factors listed in Court of Claims Act
§10(6): (1) whether the delay in filing 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 recognize a delay in filing the claim, due to the service of
the notice of intention upon the Attorney General’s Office. Given the
defects of the notice of intention as previously outlined and the wrong date,
the Court finds the notice of intention to be a nullity. The Court finds no
excuse for movant’s failure to timely serve a correct notice of intention,
other than law office failure.
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.
Given the defects in the original notice of intention, the State had no notice
of the essential facts of the claim. The State was given a wrong date, no time,
no alleged defect or manner in which the claim arose and only a very general
location. Clearly, the State had no opportunity to investigate as the notice of
intention did not give notice to the State as to what should be investigated.
The Court also finds that the State would be substantially prejudiced by
allowing the claim to go forward. The defect that movant claims caused the
accident, a pothole, is a condition which is transient in nature. Any
investigation of the scene at this point would be worthless. Accordingly, none
of these factors favor claimant.
The Court finds that movant has no other available remedy.
While the presence or absence of any one factor is 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 is the apparent merit of the proposed claim. A 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 the Court of Claims Act §
10(6) weighed in favor of the movant’s request.
The proposed claim cures some of the defects which were present in the notice
of intention, namely, movant lists the date and time of the occurrence. The
location states that movant was eastbound on Route 347 near its intersection
with Myrtle Street. There is no indication if movant is east or west of Myrtle
Street, which travel lane he is in or any measurement from a landmark to
distinguish this pothole from any other pothole.
The allegations of negligence are conclusory in nature. They fail to
demonstrate defendant had actual or constructive notice of the alleged condition
(see Sevillia v State of New York, 91 AD2d 792).
Based on the foregoing, the Court concludes that the statutory factors do not
favor movant’s application and, therefore, denies permission to file a