New York State Court of Claims

New York State Court of Claims

PINO v. STATE OF NEW YORK, #2006-015-073, Claim No. NONE, Motion No. M-71048


Synopsis


Late claim relive denied where movant failed to supply a proposed claim and application lacked sufficient factual allegations to permit Court to determine the action's potential merit.

Case Information

UID:
2006-015-073
Claimant(s):
AARON PINO
1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
PINO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-71048
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Aaron Pino, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael Rizzo, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 27, 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. The moving papers consist of a notice of motion dated November 8, 2005; an affidavit in support sworn to November 8, 2005 along with an affidavit of service upon the Attorney General and upon the Court; and letters to the Court's presiding judge dated November 6, 2005 and November 8, 2005. Movant failed to submit a proposed claim as required by Court of Claims Act § 10 (6). The defendant opposed the motion by affidavit of Assistant Attorney General Michael Rizzo.

Late claim applications are governed by section 10 (6) of the Court of Claims Act which, in relevant part, provides:
The application for such permission shall be made upon motion returnable at any regular or special session of the court and may be heard and determined by any judge thereof. The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application. In determining whether to permit the filing of a claim pursuant to this subdivision, the court shall consider, among other 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 absence of a proposed claim is fatal to an application for late claim relief (see Grant v State of New York, Ct Cl, September 6, 2000 [Claim No. None, Motion No. M-61919, UID # 2000-001-049] Read, P.J., unreported[2]; 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). Moreover, of the six statutory factors which the Court must consider on a late claim application the only one addressed in movant's affidavit was his excuse for late filing. Specifically, claimant in this regard alleges that numerous unsuccessful attempts to have the New York State Secretary of State take action against a private investigator purportedly delayed the filing and service of the claim. This excuse amounts to ignorance of the law which is not an acceptable excuse for the delay in serving and filing the claim (Matter of E.K. v State of New York, 235 AD2d 540; Sevillia v State of New York, 91 AD2d 792).

Given the absence of a proposed claim and the lack of factual detail in movant's affidavit it is impossible for the Court to determine the true nature of the claim, whether the State received notice of the underlying events and was thereby afforded an opportunity to investigate the allegations and whether claimant might have an alternative remedy available.

Absent reply papers from the movant addressing defendant's Exhibit B the Court cannot presume that the claim previously served upon the Attorney General but not filed with the Court[3] is in fact the proposed claim movant would have presented on the late claim application. Even viewed as the proposed claim it lacks the essential elements required by Court of Claims Act § 11 (b) (see Lepkowski v State of New York, 1 NY3d 201, 207). Accordingly, movant's application for late claim relief is denied.

February 27, 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 November 8, 2005;
  2. Affidavit of Aaron Pino sworn to November 8, 2005 with exhibits;
  3. Affidavit of Michael C. Rizzo sworn to December 5, 2005 with exhibits;
  4. Letter dated October 26, 2005 from Joan M. Fontana;
  5. Letter dated November 17, 2005 from Kevin J. Macdonald.

[2].Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us./decision.htm.
[3].See letters of the Acting Chief Clerk dated October 26, 2005 and of the Court's Senior Court Attorney dated November 17, 2005.