Notice of Motion, Affidavit in Support, with Exhibits (including Proposed
“Notice of Claim General Municipal Law 50e” as Exhibit E) 1,2
Affirmation in Opposition 3
In his proposed claim, claimant has alleged that he was subjected to an illegal
search and seizure in this home on August 8, 2002 in the City of Syracuse, and
then falsely arrested, by officers of the Syracuse Police Department. Claimant
alleges that his conviction resulting from this arrest was reversed by the
Appellate Division, Fourth Department on September 30, 2005, and that he was
released from custody on October 6, 2005. This motion was filed with the Clerk
of the Court of Claims on June 5, 2006.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
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 file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
With regard to excuse, claimant states that subsequent to his release from
custody on October 6, 2005, he was arrested on an unrelated matter on
November 7, 2005 and held in the Sullivan County Jail, without bail. He further
states that while he was housed in the Sullivan County Jail, he attempted to
serve a “notice of intent” upon the Attorney General on November 15,
2005, but was unable to do so since he did not possess sufficient funds to cover
the cost of mailing said notice by certified mail, return receipt requested.
According to claimant, the Sheriff of Sullivan County had adopted a policy in
which it does not assume financial responsibility for the mailing of
correspondence by certified mail, return receipt requested (see Exhibit C to
Items 1, 2). Claimant therefore contends that he was prevented from timely
serving his “notice of intent” in the manner prescribed by the Court
of Claims Act.
It is well settled that the service and filing requirements of the Court of
Claims Act are jurisdictional prerequisites to the institution and maintenance
of a claim (Finnerty v New York State Thruway Auth., 75 NY2d 721;
Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607)
and as a result, service of a claim not made in accordance with the strict
provisions of Court of Claims Act § 11(a), is considered a jurisdictional
Claimant has satisfied the Court that he was prevented from properly serving a
notice of intention by the Office of the Sullivan County Sheriff, and has
therefore presented to the Court an acceptable excuse for his failure to serve
such a notice, or to serve and file a claim, while he was in their custody.
Even though claimant has presented an acceptable excuse, however, the Court must
also consider the other statutory factors set forth in § 10(6) in deciding
whether to grant claimant permission to serve and file a late claim.
The intertwined factors of notice, opportunity to investigate, and substantial
prejudice will be considered together. In his response, defendant’s
attorney indicates that the first notice of this potential claim only occurred
when the instant motion was served upon the Attorney General on June 2, 2006.
Claimant has provided no information whatsoever that the State had any notice,
prior to this date, that a claim might be brought against the State.
Accordingly, the Court must find that the State did not have any actual notice
of a potential claim, and as a result, had no opportunity to conduct an
investigation of the circumstances surrounding this potential claim. Due to
this lack of notice and without any opportunity to conduct an investigation,
the Court also finds that the State will be substantially prejudiced should it
have to defend this claim at this point in time.
The next factor, often deemed the most critical, is whether the proposed claim
has the appearance of merit. If claimant cannot establish a meritorious claim,
it would be an exercise in futility to grant a late claim application (Savino
v State of New York, 199 AD2d 254; Prusack v State of New York, 117
AD2d 729). In order to establish a meritorious cause of action, claimant has
the burden to show that the proposed claim is not patently groundless,
frivolous, or legally defective, and that there is reasonable cause to believe
that a valid claim exists (Matter of Santana v New York State Thruway
Authority, 92 Misc 2d 1).
As previously stated herein, claimant’s proposed claim (entitled
“Notice of Claim General Municipal Law 50e” [Exhibit E to Items 1,
2]) alleges that claimant was falsely arrested and subjected to an illegal
search and seizure in his home by officers of the Syracuse City Police
Department. In his affidavit submitted in support of this motion, claimant
states that “[t]he facts and the cause of action served on the Onondaga
County Attorney are identical to the Cause of action to be served on the
Attorney General” (see Item 2, par. 11).
The jurisdiction of the Court of Claims, however, is limited to actions against
the State, as well as torts committed within the scope of their employment by
State employees, officers, or agents (Cornell v State of New York
The Court of Claims, however, has
no jurisdiction over other municipalities and their employees (Whitmore v
State of New York
, 55 AD2d 745, lv denied
, 42 NY2d 810).
Since claimant has alleged a claim only against the City of Syracuse and the
County of Onondaga, the Court of Claims has no jurisdiction to hear such a
claim. The Court must find, therefore, that claimant has failed to allege a
meritorious claim, and it would be futile for this Court to grant such an
application (Prusack v State of New York
Finally, based on the papers submitted by claimant with this application, it
appears that claimant is pursuing, or intends to pursue, a claim against the
City of Syracuse and Onondaga County. It therefore appears that claimant does
have another remedy available to him.
Accordingly, after a review of the papers presented herein, and after weighing
and considering all of the factors set forth under Court of Claims Act §
10(6), the Court finds that five of the six factors, including the all-important
factor of merit, weigh against claimant. As a result, for the reasons stated
above, it is the opinion of this Court that claimant should not be allowed to
serve and file his proposed claim.
Therefore, it is
ORDERED, that Motion No. M-71869 is hereby DENIED.