This is now the fourth time Ms. Joseph has sought the intercession of this
Court in one fashion or another in order to bring before it a claim alleging the
disappearance of unspecified documents held in the Office of the Civil Court
Clerk in Kings County relative to a lawsuit involving Ms. Joseph.
Initially, a claim based upon the same facts was dismissed because it had been
served and filed more than ninety (90) days after its accrual. [See
Joseph v State of New York, Claim No. 109228, Motion No. M-68501,
Decision and Order (Scuccimarra, J., August 19, 2004)]. The claim had been
served and filed in April 2004. [id]. The apparent date of
accrual was August 2002, premised upon her request for documents and the Clerk's
failure to produce them. [id]. The Court then suggested that perhaps
Claimant could make a motion for late claim relief. [id].
A subsequent motion for a six-month extension of some unspecified subject was
denied, with the Court again noting that perhaps what Claimant sought was late
claim relief. [See Joseph v State of New York, Claim No. 109228;
Motion No. M-69087, Decision and Order (Scuccimarra, J., October 28, 2004)].
Thereafter, Claimant made a motion for late claim relief, that was denied.
[See Joseph v State of New York, Claim No. None; Motion No.
M-69420, Decision and Order (Scuccimarra, J., April 11, 2005)].
Most recently, the Court denied reargument of the April 11, 2005 denial of
Claimant's application for late claim relief in a Decision and Order that was
served upon Ms. Joseph on October 27, 2005. [See Joseph v State of New
York, Claim No. None, Motion No. M-70167, Decision and Order (Scuccimarra,
J., October 19, 2005)].
The present motion again places before the Court exactly the same defects
presented in earlier motion practice. The Court still has no idea what happened
in the underlying civil action or actions, and how Claimant was damaged by the
actions of any court employee.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, "among other factors," the six factors set
forth in §10(6) of the Court of Claims Act. The factors stated therein
are: (1) whether the delay in filing the claim was excusable; (2) whether the
State had notice of the essential facts constituting the claim; (3) whether the
State had an opportunity to investigate the circumstances underlying the claim;
(4) whether the claim appears meritorious; (5) whether substantial prejudice
resulted from the failure to timely serve upon the Attorney General a claim or
notice of intention to file a claim, and the failure to timely file the claim
with the Court of Claims; and (6) whether any other remedy is available. The
Court is afforded considerable discretion in determining whether to permit the
late filing of a claim. See e.g. Matter of Gavigan v State of New
York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any
particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v
New York State Employees' Retirement System Policemen's & Firemen's
Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New
York, 288 AD2d 172 (2d Dept 2001).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed ". . . at any time before an action asserting a like claim
against a citizen of the state would be barred under the provisions of article
two of the civil practice law and rules . . ." Court of Claims Act § 10(6).
Here, it is difficult to discern what the applicable statute of limitations is
since what happened is unclear.
Additionally, Claimant has failed to append a copy of her proposed Claim, as
, and thus the Court cannot ascertain
whether the particulars of the claim are stated, including a more specific date
, a description of what conduct is
alleged, and what damages were sustained. See
Court of Claims Act
§11-b; Sinski v State of New York
, 265 AD2d 319 (2d Dept
Finally, none of the factors noted above that are required to be addressed in
order for the Court to consider an application for permission to serve and file
a late claim are discussed in the moving papers.
Accordingly, Claimant's Motion Number M-70936 is in all respects denied.