Movant's application for late claim relief pursuant to Court of Claims Act
§ 10 (6) is denied. Movant's application for late claim relief was not
accompanied by a proposed claim as required by Court of Claims Act § 10
(6). Such a defect has been found to be fatal to a late claim application in
several Court of Claims decisions including Grant v State of New York
Cl, September 6, 2000 [Claim No. None, Motion No. M-61919, UID #
], Read, P.J. unreported;
Larocco v State of New York
, Ct Cl May 24, 2004 [Claim No. None, Motion
No. M-68085, UID # 2004-009-33], Midey, J., unreported. In addition, movant did
not submit a sworn statement containing factual allegations relative to the
merits of his claim(s) and in an unsworn statement addressed only three of the
six statutory factors which the Court must consider on a late claim motion
pursuant to Court of Claims Act § 10 (6).
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
state; and whether the claimant has any other available remedy".
The first issue for determination upon a late claim motion is whether the
application is timely. Movant alleges that the negligence complained of took
place on March 31, 2005
. Since the applicable
statute of limitations is three years for personal injury actions (CPLR 214)
the application would be timely.
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965). The statutory factors are not exhaustive nor is one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
Movant alleges that his delay in filing and serving the claim was excusable
because he spent one day in a hospital and was under medication for his
injuries. Mere conclusory allegations of physical incapacity do not present a
reasonable excuse for the delay (see Thomas v State of New York,
272 AD2d 650, Bommarito v State of New York, 35 AD2d 458, Plate v
State of New York, 92 Misc 2d 1033).
The intertwined issues of notice, opportunity to investigate and prejudice will
be considered together. The Court is prevented by the absence of a proposed
claim from determining whether movant may have a meritorious cause of action.
It appears from the motion papers that the acts complained of took place at the
Clinton County Jail, a facility which is neither owned nor operated by the
remaining defendant State of New York. Moreover, a sheriff and his staff are
local employees and not State officers within the jurisdiction of this Court
(Williams v State of New York, 90 AD2d 861; Stacchini v State of New
York, Ct Cl, October 23, 2001 [Claim No. None, Motion No. M-63875, UID #
2001-028-568] Sise, J., unreported). Nor can it be determined from the motion
whether the State had notice of movant's complaints and an opportunity to
investigate his allegations. Claimant's unsworn assertion that the Clinton
County Sheriff possesses records regarding the incident is unavailing. These
factors also weigh against the movant.
Consideration of all of the above factors persuades the Court that movant's
application for late claim relief should be denied.