New York State Court of Claims

New York State Court of Claims

KILGORE v. THE STATE OF NEW YORK, #2006-009-051, Claim No. NONE, Motion No. M-71869


Claimant’s application for late claim relief was denied, with the Court finding that this Court lacked jurisdiction over the proposed claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General
BY: Michael W. Friedman, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 25, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
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

Reply 4

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 defect.

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, 46 NY2d 1032).[1] 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, supra).[2]

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.

September 25, 2006
Syracuse, New York

Judge of the Court of Claims

[1]. The Court of Claims also has jurisdiction over certain public authorities, none of which are applicable herein.
[2]. In his reply (Item No. 4) claimant alleges that his claim is for malicious prosecution, false arrest and wrongful conviction and imprisonment (see par. 5 to Item 4). The Court has reviewed the proposed claim, however, and finds no such allegations contained therein over which this Court has jurisdiction.