National Union Fire Insurance Company of Pittsburgh, PA (“National
Union”) moves for permission to file a late claim pursuant to §10.6
of the Court of Claims Act (the “Act”). The proposed claim alleges
a breach of contract, i.e.
, that the State Insurance Fund failed to
reimburse National Union for one-half the defense costs generated by in-house
counsel in defending a mutually insured. 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.
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).
Defendant raises no argument with regard to these three factors, and I find that
they have been met.
With regard to an alternate remedy, it appears undisputed that this court is
the sole appropriate venue. As to excuse, National Union has offered no
explanation for its failure to serve and file a timely claim.
The remaining factor to be considered is whether the proposed claim appears
meritorious. In Travelers Insurance Company v Commissioners of the State
, 227 AD2d 208, 209, 642 NYS2d 867, 868 (1st Dept 1996), lv
, 89 NY2d 803, 653 NYS2d 280 (1996), the Appellate Division held that
“an insurer must contribute to the expenses incurred by a
co-insurer’s in-house counsel in the defense of a mutual insured.”
Defendant maintains that the claim does not appear meritorious because the facts
are distinguishable in that here, the State Insurance Fund
informed National Union by letter that it would not reimburse it for in-house
counsel fees. I find such argument unpersuasive. See New Hampshire
Insurance Company v State of New York
, Ct Cl, December 1, 2003 (unreported,
motion no. M-64190, Nadel, J.
Travelers Property Casualty Corp. v State Insurance Fund,
Sup Ct, Queens
County, August 16, 2000 (unreported, Index No. 4897, Motion Cal. No. 44, Golar,
In any event, 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
In view of the foregoing, having reviewed the
, IT IS ORDERED that motion no.
M-71961 be granted and that within forty-five (45) days of the filing of this
Decision and Order, claimant shall serve and file its claim in compliance with
Court of Claims Act §11 and §11-a.