New York State Court of Claims

New York State Court of Claims

NATIONAL UNION v. THE STATE OF NEW YORK, #2006-016-082, Claim No. None, Motion No. M-71961


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:
Lester Schwab Katz & Dwyer, LLPBy: Joshua Zimring, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
December 6, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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.[1]

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 Insurance Fund, 227 AD2d 208, 209, 642 NYS2d 867, 868 (1st Dept 1996), lv denied, 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 in Travelers 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.[2]). Cf. Travelers Property Casualty Corp. v State Insurance Fund, Sup Ct, Queens County, August 16, 2000 (unreported, Index No. 4897, Motion Cal. No. 44, Golar, J.[3]).

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 exists.”

In view of the foregoing, having reviewed the submissions[4], 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.

December 6, 2006
New York, New York

Judge of the Court of Claims

  1. [1]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. [2]Such decision is annexed to claimant’s reply papers as exhibit A.
  3. [3]Such decision is annexed to defendant’s opposition papers as exhibit B.
  4. [4]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 reply affirmation with exhibits A through D.