This is a motion for a late claim
property damages by One Beacon Insurance Co. as subrogor of Peppina E. Turck
(hereinafter “movant”) as the result of a motor vehicle collision
while the motor vehicle was in the care of the State of New York (hereinafter
“defendant”). The incident took place on July 8, 2004, at the
University Hospital at Stony Brook, New York, (hereinafter
On July 8, 2004, movant’s subrogee used the valet parking service
provided at defendant’s hospital. While defendant’s employee was
parking the vehicle, he struck a pole and another vehicle. 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
Movant does not attempt to make an excuse for the delay in filing. Therefore,
this factor does not favor movant.
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.
As argued by movant, defendant had notice of the underlying facts of the claim
when the accident occurred, as well as an opportunity to investigate the matter.
The Court finds no substantial prejudice to defendant.
While the presence or absence of any one of the six factors 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 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 Court, based on movant’s papers and exhibits finds there is an
appearance of merit.
Defendant interposes no opposition to the motion.
In conclusion, the majority of factors favor movant and the application to file
a late claim is granted. Movant shall serve and file the proposed claim,
pursuant to Court of Claims Act §§10, 11 and 11-a within forty-five
(45) days of the filing date of this decision and order.