New York State Court of Claims

New York State Court of Claims

FARNSWORTH v. THE STATE OF NEW YORK, #2006-031-091, Claim No. 110822, Motion Nos. M-71609, M-71631


Claim for negligence, served more than 90 days after accrual of action is untimely. Defendant’s motion to dismiss the claim is granted. Claimant’s late claim application fails to demonstrate the merit of his proposed claim. Accordingly Claimant’s motion is denied

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):
M-71609, M-71631
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 10, were read on motion by Claimant for permission to file a late claim and on motion by Defendant for dismissal of the claim:
1. Claimant’s Notice of Motion (M-71609), filed April 24, 2006;
2. Affidavit of Alexander J. Farnsworth, sworn to April 5, 2006;
3. Affirmation of Alfred P. Kremer, Esq., dated April 6, 2006;
4. Defendant’s Notice of Motion (M-71631), filed April 27, 2006;
5. Affirmation of James L. Gelormini, Esq., dated April 26, 2006, with attached exhibits;
6. Defendant’s Memorandum of Law, dated April 26, 2006;
7. Affirmation of Alfred P. Kremer, Esq., dated May 6, 2006;
8. Reply Affirmation of James L. Gelormini, Esq., dated May 11, 2006;
9. Surrebuttal Affidavit of Alexander J. Farnsworth with attached exhibits, sworn to May 15, 2006;
10. Affirmation In Support of Mr. Farnsworth’s surrebuttal by Alfred P. Kremer, Esq., dated May 15, 2006. BACKGROUND

In his underlying claim, filed on April 29, 2005, Claimant, Alexander J. Farnsworth, alleges that he was improperly arrested by members of the Ontario County Sheriff’s Department in the town of South Bristol, on July 26, 2003. Claimant was apparently alleged to have been carrying a shotgun and improperly pointing it at a third party or parties. In his claim, Mr. Farnsworth alleges that he was, at first, given a simple appearance ticket. However, when the officers went back to their vehicle and ran a computer check on Claimant, they determined that he was a convicted felon and was not permitted to carry firearms. They, therefore, arrested him, charged him with a felony and he was held in jail until August 28, 2003 (33 days). Claimant alleges that he was not a convicted felon, but that he had previously been adjudicated a youthful offender and that the record was to have been sealed. He alleges that, but for Defendant negligently advising the officers through its computers that Claimant was a convicted felon, he would not have been arrested and he would not have spent 33 days in jail.
There is no dispute between the parties that the claim accrued on July 26, 2003, when Claimant was arrested or, at the latest, on August 28, 2003, when Claimant was allegedly released from custody. Claimant served no notice of intention. The claim was filed almost two years later on April 29, 2005. Pursuant to Court of Claims Act (“CCA”) § 10(3), a claim based upon personal injury resulting from the negligence or intentional act of an agent of the State, such as the cause of action relating to the assault, must be filed and served within 90 days unless Claimant has served a notice of intention to file a claim. Claimant did not serve a notice of intention relating to this claim. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in Court of Claims Act § 10 are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). As such, Defendant’s motion must be granted and the claim must be dismissed as untimely.
Claimant has requested that he be permitted to file a late claim. Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

With regard to his excuse for the delay, Claimant has offered no legally recognized excuse for his delay. Accordingly, I find that this factor weighs in Defendant’s favor. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing a § 10(6) application and does not necessarily preclude the relief sought here (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

Claimant has adequately demonstrated that he has no other adequate avenue of redress for the matters alleged in the claim. This factor, therefore, weighs in Claimant’s favor.

The next three factors covering notice, opportunity to investigate and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). Although the claim was not filed in a timely manner, Claimant’s undisputed representation is that it was served in a timely manner on October 23, 2003. Accordingly, I find that these three factors weigh in Claimant’s favor. Defendant had notice of the claim, an opportunity to investigate and has not been substantially prejudiced by Claimant’s delay.

Of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant. It would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Defendant asserts that the claim lacks merit for several reasons. First, Defendant points out that Claimant was not, in fact, charged with a felony. The certified records submitted with Defendant’s motion papers clearly indicate that Claimant was charged with two misdemeanors (PL 265.01 and PL 120.14). Those records also show that Claimant was released on bail after 5 days, not 33 days as alleged. Finally, and most significantly, those records include the arrest report prepared by the arresting officers on the night of the incident, July 26, 2003. That document indicates that, contrary to Claimant’s position, the officers learned of Claimant’s prior criminal history, not from the State’s computer system, but from the Claimant himself. Claimant’s counsel also admitted this fact at oral argument. Defendant’s counsel also represented to the Court that the State’s computer system did not indicate that Claimant was a convicted felon as alleged in the proposed claim. This being the case, I find nothing in the record from which it could be argued that the State was in any way involved in the Claimant’s arrest. He was arrested by members of the Ontario County Sheriff’s Department and he pled guilty to one of those charges (PL 120.14, Menacing). Accordingly, I find that the proposed claim lacks the appearance of merit.

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), the Court finds that they weigh in Defendant’s favor. Based upon the foregoing, it is hereby

ORDERED, that Defendant’s motion (M-71631) for dismissal of the claim as untimely is granted. It is further

ORDERED, that Claimant’s motion for permission to file a late claim (M-71609) is denied.

December 29, 2006
Rochester, New York

Judge of the Court of Claims