1,2 Notice of Motion; Affirmation by David L. Engelsher, Attorney for Claimants
and attached exhibits
NO OPPOSITION FILED
George and Maria Garcia allege in their proposed claim that on December 16,
2004 they were involved in a motor vehicle collision with a vehicle owned by New
York State and driven by an employee operating the vehicle in the course of his
employment, and suffered serious injury. [Affirmation by David L. Engelsher,
Exhibit K]. George Garcia was a passenger in the car operated by his wife Maria
Garcia. [id.]. Her claim is a derivative one for loss of
An earlier claim [see ibid. Exhibit H] arising out of the same accident
had been dismissed by this Court because Claimants failed to timely and properly
serve either a Notice of Intention to file a Claim, or the Claim itself, within
ninety (90) days of its accrual. [see ibid. Exhibit I]. In the Decision
and Order dismissing the earlier claim, the Court noted that some of the
arguments advanced by Claimants’ counsel to oppose dismissal more properly
belonged in an application for permission to serve and file a late claim. The
present motion now affirmatively seeks such relief.
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 file and serve upon the Attorney
General a claim or notice of intention to file a claim; 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
, 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, the applicable statute of limitations is three (3) years, premised
upon the various negligence causes of action raised, thus the motion is timely.
Civil Practice Law and Rules §214.
A claim appears to be "meritorious" within the meaning of the statute if it is
not patently groundless, frivolous or legally defective and a consideration of
the entire record indicates that there is reasonable cause to believe that a
valid cause of action exists. Matter of Santana v New York State Thruway
Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimants need not establish a prima
facie case at this point, but rather the appearance of merit. See
e.g. Jackson v State of New York, Claim No. None, Motion No. M-64481
(Midey, J., February 28, 2002).
Claimants do not really advance any excuse for the failure to timely serve and
file a claim within ninety (90) days of its accrual. Indeed, it appears that
Counsel simply failed to serve the Defendant as required, in that a copy of the
Notice of Intention to File a Claim was sent to the Clerk of the Court of
rather than served upon the Office of
the Attorney General, and as a result when Claimants did serve the Attorney
General’s Office with a copy of the claim more than ninety (90) days after
its accrual, the claim was untimely, since the Notice of Intention had not acted
to extend the time period within which to serve a claim.
The absence of an excuse, however, is but one of the factors to be considered,
and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc.
v New York State Employees’ Retirement System Policemen’s &
Firemen’s Retirement System, supra.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh toward granting Claimants’
motion. Although the earlier Claim was not properly served, it was nonetheless
investigated by the Office of the Attorney General before it was dismissed, and
there appears to be documentary evidence in the form of accident reports.
Additionally, the passage of time has not been so great that the State’s
ability to investigate is impeded to its prejudice. Cf. Edens v State
of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and
one-half months from date of accrual). Accordingly, these factors weigh
in favor of granting the motion.
As noted, Claimants need not establish their claim prima facie, but
rather show the appearance of merit. Jackson v State of New York,
supra. Claimants have attached a police accident report giving the
details and placing the vehicles at the points of impact and rest [Affirmation
by David Engelsher, Exhibit A], and medical records substantiating injuries.
[See ibid. Exhibits B, C, D, E, F]. Claimant George Garcia apparently
has a scar, walks with a limp, and is still in pain as of the date of his
affidavit. [See ibid. Exhibit J]. If the allegations in the claim are
accepted as true for the purposes of the motion, Claimants have made the
requisite showing of merit in order to permit late service and filing of their
Accordingly, Claimants’ motion for permission to serve and file a late
claim is hereby granted. Claimants are directed to serve a properly verified
claim upon the Attorney General, and to file it with the Chief Clerk of the
Court of Claims within thirty (30) days from the date of filing of this decision
and order in the Clerk’s Office, with such service and filing to be in
accordance with the Court of Claims Act, with particular reference to
§§ 10, 11 and 11-a, and the Uniform Rules for the Court of