New York State Court of Claims

New York State Court of Claims

KEYSPAN v. THE STATE OF NEW YORK, #2006-033-169, Claim No. None, Motion No. M-70480


Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK1 1.The Court sua sponte amends the caption to read The State of New York as the only Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

James J. Lack
Claimant’s attorney:
George D. Argiriou, Esq.By: Lisa M. Zafonte, Esq.
Defendant’s attorney:
Mulholland, Minion & RoeBy: John A. Beyrer, Esq.
Third-party defendant’s attorney:

Signature date:
March 15, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion by Keyspan Gas East Corporation d/b/a Keyspan Energy Delivery Long Island (hereinafter “movant”), to ask this Court to deem its Notice of Intention to be properly served on March 3, 2005, or, in the alternative, for permission to file a late claim pursuant to Court of Claims Act §10(6)[2].

According to the motion, on December 3, 2004, a contractor working for the State of New York (hereinafter “defendant”) damaged gas facilities belonging to the movant. The incident occurred on the south side of State Route 25 at or near the intersection with Stillwater Avenue, Cutchogue, New York. A Notice of Intention was served on the NYS Attorney General’s Office on March 3, 2005. Thereafter, the Notice of Intention was rejected by the Attorney General’s Office as a nullity because of improper verification.

After examining the supporting papers of the parties, it appears that the parties are not using the same set of papers. Movant’s Exhibit A is a copy of the Notice of Intention, as is defendant’s Exhibit B. However, movant’s Exhibit A was personally served on an assistant attorney general in the Suffolk County office of the Attorney General on March 3, 2005 and thereafter received in the New York City office on March 4, 2005. Defendant’s Exhibit B was received by the Suffolk County office on March 4, 2005, and thereafter in the New York City office on March 8, 2005.[3] A rejection letter was sent out to movant on March 4, 2005 (movant’s Exhibit C) and again on March 8, 2005 (defendant’s Exhibit A).

Court of Claims Act §11(b) requires that a Notice of Intention be verified. The requirements contained in Court of Claims Act §11 are jurisdictional in nature (Lepkowski v State of New York, 1 NY3d 201). Jurisdictional defects may not be cured by amendment (Roberts v State of New York, 4 Misc 3d 768).

In this matter, defendant’s rejection of movant’s Notice of Intention was done in a timely manner. The Court finds that the rejection took place on March 4, 2005, within twenty-four hours of first being served with the Notice of Intention on March 3, 2005.[4]
The Court turns its attention to movant’s application for permission to file a late claim pursuant to Court of Claims Act §10(6). In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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 failure to file or serve a timely claim or serve a notice of intention resulted in substantial prejudice to the State; (5) whether the movant has another available remedy; and (6) whether the claim appears to be meritorious. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

The Court has reviewed the parties’ papers in support and in opposition to the motion.

Based on the foregoing, the Court concludes that the statutory factors favor movant’s application and therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD3d 527). Movant shall serve and file the proposed claim within forty-five (45) days of the filing of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act, and the Court’s amendment of the caption of this Decision and Order.

March 15, 2006
Hauppauge, New York

Judge of the Court of Claims

[2].The following papers have been read and considered on movant’s motion: Notice of Motion dated July 19, 2005 and filed July 22, 2005; Affirmation of Lisa M. Zafonte, Esq. with annexed Exhibits A-D dated June 6, 2005 and filed July 22, 2005; Affirmation in Opposition of John A. Beyrer, Esq. with annexed Exhibits A-C dated August 30, 2005 and filed September 2, 2005; Reply Affirmation of Lisa M. Zafonte, Esq. with annexed Exhibit A dated October 31, 2005 and filed November 7, 2005.
[3].The Court presumes that since the Notice of Intentions are identical one was received by personal service and the other by mail.
[4].If the Court were to accept the date of March 4, 2005, then service would be on the 91st day and, therefore, untimely.