New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2006-016-038, Claim No. None, Motion No. M-71248


Late claim motion was granted.

Case Information

1 1.The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

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

Alan C. Marin
Claimant’s attorney:
Scott J. Zlotolow, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 25, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Leran Davis moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In his proposed claim, Mr. Davis alleges that on September 10, 2005, the motorcycle which he was driving was struck by a Ford Suburban owned by the New York State Division of Parole. In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[2]

With regard to merit, the police report on the accident indicates that claimant maintained that the driver of the Ford failed to stop at a stop sign before colliding with him. However, it also indicates that this other driver stated that he had stopped, and that claimant, who was traveling at 60 mph, collided with him. Defendant points out that the report also indicates that “apparent contributing factors” to the accident were that claimant was traveling at an “unsafe speed” and had engaged in “aggressive driving/road rage.” Defendant also raises issues as to whether the Ford driver was on State business at the time of the accident. While the foregoing issues will ultimately have to be addressed by claimant, for the purposes of this motion, he meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (I) the claim “must not be patently groundless, frivolous, or legally defective” and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, “there is reasonable cause to believe that a valid cause of action exists.”

As to an alternate remedy, depending on the facts, claimant might have a remedy against the driver of the Ford. With regard to excuse, it is asserted that claimant never received a draft claim that was sent to him by his attorney on or about November 7, 2005, and it was not discovered until after his statutory 90-day period had run that he had failed to return “the paperwork” to his attorneys. Claimant has submitted no authority that such is a valid excuse for the purposes of the Act.

Finally, whether defendant had notice of the essential facts, had an opportunity to investigate, or would be prejudiced by the granting of this motion, are factors that are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, a State employee was driving the Ford, and the police report indicates that the Division of Parole was notified of the Accident. In addition, Davis has submitted two pieces of correspondence (dated September 30 and October 5, 2005) indicating that the State was aware of the accident. In any event, defendant makes no argument with regard to these three factors, and I find that they have been satisfied.

In view of the foregoing, having reviewed the parties’ submissions[3], IT IS ORDERED that motion no. M-71248 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file his claim in compliance with Court of Claims Act §11 (including the statement of a “total sum claimed”) and §11-a (requiring a filing fee).

May 25, 2006
New York, New York

Judge of the Court of Claims

  1. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [3]The Court reviewed: claimant’s notice of motion with affirmation in support and exhibits A through F; defendant’s affirmation in opposition with exhibits A and B; and claimant’s affirmation in reply.