New York State Court of Claims

New York State Court of Claims

ANDREYEV v. THE STATE OF NEW YORK, #2006-033-186, Claim No. None, Motion No. M-71118


Synopsis



Case Information

UID:
2006-033-186
Claimant(s):
EILEEN ANDREYEV and GREGORY ANDREYEV
Claimant short name:
ANDREYEV
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-71118
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
The Law Office of John P. Gianfortune, P.C.By: John P. Gianfortune, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 6, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by Eileen Andreyev and Gregory Andreyev (hereinafter "movants") due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on February 28, 2004.

Movants seek permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)[1].

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 timely 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 of and in opposition to the motion.

Based on the foregoing, the Court concludes that the statutory factors favor movants’ application and, therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD3d 527). Movants are directed to 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.


April 6, 2006
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on movants’ motion: Notice of Motion dated December 22, 2005 and filed December 27, 2005; Affirmation in Support of John P. Gianfortune, Esq. with annexed Exhibits A-S dated December 22, 2005 and filed December 27, 2005; Affirmation in Opposition of Todd A. Schall, Esq. with annexed Exhibit A dated February 24, 2006 and filed February 27, 2006.