New York State Court of Claims

New York State Court of Claims

SEARS v. STATE OF NEW YORK, #2006-015-063, Claim No. NONE, Motion No. M-70820


Synopsis


Late claim application denied for failure to submit a proposed claim. Moreover Court of Claims has no jurisdiction to hear and decide claim basedon actions of a county sheriff and/or his deputies.

Case Information

UID:
2006-015-063
Claimant(s):
ALAN SEARS The Court sua sponte amends the caption to delete certain named defendants, including the Clinton County Sheriff's Dept., over which this Court has no subject matter jurisdiction.
Claimant short name:
SEARS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court sua sponte amends the caption to delete certain named defendants, including the Clinton County Sheriff's Dept., over which this Court has no subject matter jurisdiction.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-70820
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Alan Sears, Pro se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 19, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

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, Ct Cl, September 6, 2000 [Claim No. None, Motion No. M-61919, UID # 2000-001-049[1]], 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[2]. Since the applicable statute of limitations is three years for personal injury actions (CPLR 214[5]) 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.


January 19, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated October 11, 2005 with exhibits;
  2. Affirmation of Kathleen M. Arnold dated November 14, 2005.

[1]Unreported decisions from the Court of Claims are available via the internet at
[2]The Court notes that a notice of intention to file a claim attached to the motion papers asserts a November 2004 accrual date.