New York State Court of Claims

New York State Court of Claims

AMERICAN HOME ASSURANCE CO. V. THE STATE OF NEW YORK, #2006-016-041, Claim No. None, Motion No. M-71157


Late claim motion was granted

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):

Alan C. Marin
Claimant’s attorney:
Altschul & GoldsteinBy: Stanford M. Altschul, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 2, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


American Home Assurance Company (“American”) moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”).[1] Defendant has not opposed this motion. In the proposed claim, it is alleged that on November 27, 2002, a pedestrian, Luis Rodriguez, was struck by a motor vehicle which was insured by American. Thereafter, American paid Mr. Rodriguez $22,210.35 in No Fault benefits. American further alleges that the accident took place in the parking lot of Rodriguez’s employer, such that the insurance benefits should have been paid by the State Insurance Fund, which was the Workers’ Compensation carrier for Rodriguez’s employer. According to American, despite demand for reimbursement, the State Insurance Fund has failed to pay American for the sums paid out to Rodriguez. 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]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion 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, it is asserted that Rodriguez filed a “timely Workers’ Compensation claim at the same time that he filed the No Fault claim with American . . .” I find the record to be sufficient on these factors.

As to an alternate remedy, to the extent that this is an action lying in contract for monetary damages, the appropriate venue is an action in this Court against the State of New York. With regard to excuse, claimant notes that when it paid out the benefits to Rodriguez, it was unaware that the accident had occurred in his employer’s parking lot. It is not stated in American’s motion papers when it learned where the accident had occurred, or when it made demand for payment upon the State Insurance Fund. In any event, however, American advances no authority suggesting that such is a valid excuse for the purposes of the Act.

The remaining factor to be considered is whether the proposed claim appears meritorious. Claimant has submitted the affidavit of Timothy Nevin, a “recovery specialist” for American International Recovery, of which American Home Assurance Company is a division. Mr. Nevin essentially alleges the facts as set forth above. On balance, I find that claimant 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.”

In view of the foregoing, having reviewed the submissions[3], IT IS ORDERED that motion no. M-71157 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file its claim[4] in compliance with Court of Claims Act §11 and §11-a.

June 2, 2006
New York, New York

Judge of the Court of Claims

  1. [1]Although the notice of motion seeks permission to “file a Claim nunc pro tunc,” claimant’s papers make clear that this is an application pursuant to §10.6 of the Court of Claims Act.
  2. [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).
  3. [3]The Court reviewed claimant’s notice of motion with affidavit and affirmation in support and proposed “Notice of Claim.”
  4. [4]Claimant attaches a proposed “Notice of Claim” to its motion papers. Such should be entitled “Claim.”