New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2006-028-514, Claim No. NONE, Motion No. M-70580


Synopsis



Case Information

UID:
2006-028-514
Claimant(s):
KEMORLEY SCOTT The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
SCOTT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-70580
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
KEMORLEY SCOTT, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. Arnold, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 3, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Court has read and considered the following papers on the Claimant's application to file a late Claim pursuant to Court of Claims Act §10(6):


(1) Motion and Statement of Kemorley Scott (Miscellaneous papers annexed) filed on August 12, 2005;


(2) Affirmation in Opposition of Assistant Attorney General Kathleen M. Arnold, dated September 21, 2005 and filed on September 21, 2005.

The Claimant alleges that he was discriminated against while a patient at the Metropolitan Hospital Center, because he was a homosexual (Claim annexed to Notice of Motion).

The State opposes the application on the following grounds: (1) the application was not supported by a sworn Affidavit; (2) the Metropolitan Hospital Center is not an agency of the State; (3) the Motion was never served upon the Office of the Attorney General (Affirmation in Opposition of Kathleen M. Arnold, Assistant Attorney General).

It is well settled that the factors a Court must consider in determining a properly framed CCA 10(6) Motion are whether: (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the claim appears to be meritorious; (5) the failure to file or serve upon the attorney general a timely claim or notice of intention resulted in substantial prejudice to the State; and (6) there is any other available remedy. (See Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Cooperative Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981)

Although a portion of the "Claim" appears to have taken place within ninety days from the filing of the motion, the Claimant alleges that his delay was occasioned by fear and threats to himself and his family (Statement of Claimant, p 1 [unpaginated]).

In reviewing the six factors, the Courts have considered the most decisive factor to be whether the proposed Claim appears to be meritorious, because it would be fatal to permit the Movant to proceed if his Claim is likely to be deemed meritless (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). Here, the Metropolitan Hospital Center is neither an agency of the State nor does the Court of Claims have jurisdiction over this entity. The Court finds that after weighing the factors contained in the subdivision, they weigh against the application. Accordingly, the application is denied.



February 3, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims