New York State Court of Claims

New York State Court of Claims

GARCIA v. THE STATE OF NEW YORK, #2006-030-552, Claim No. NONE, Motion No. M-71619


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):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
June 30, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 2 were read and considered on Claimants’ motion

for permission to serve and file a late claim brought pursuant to Court of Claims Act §10(6):

1,2 Notice of Motion; Affirmation by David L. Engelsher, Attorney for Claimants and attached exhibits


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 consortium. [id.].

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.[1] 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, 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 Claims[2] 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 claim.

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 Claims.

June 30, 2006
White Plains, New York

Judge of the Court of Claims

[1]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]
[2].Since August 2, 1995, the Notice of Intention to file a Claim has only been required to be served upon the Attorney General. If attempted to file with the Court of Claims it is returned to the sender.