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 the
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 states that he is not a lawyer and, therefore, the delay is excusable.
In addition, he states that he was incarcerated for the first 50 days after the
claim arose on unrelated charges. Movant’s excuse amounts to ignorance of
the law which is not excusable (Matter of Sandlin v State of New York,
294 AD2d 723).
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.
Movant brought a writ of habeas corpus against the State while he was
incarcerated at the Suffolk County Jail and an Assistant Attorney General
appeared in the matter. The writ demanded that movant be credited with jail
time toward his parole. Given that this case will be determined by documents
and transcripts, the Court finds that the defendant has a reasonable opportunity
to investigate and that it will not be substantially prejudiced. Accordingly,
these factors favor movant.
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.
In reviewing the parties’ papers, it appears that movant has failed to
show merit. Defendant produces an affirmation of a witness who explains that
movant should not have been released and that he was not credited with the jail
time while he was incarcerated on local charges. Movant indicates that he was
ordered released by a Court, but offers no transcript of a proceeding or written
order directing his release. The Court finds this factor does not favor
While the majority of factors favor movant, the most important factor, merit,
does not. It would be wasteful of judicial resources and the parties’
time to allow a meritless case to proceed. Based on the foregoing, the Court
denies movant’s application to file a late claim.