New York State Court of Claims

New York State Court of Claims

DELISO v. THE STATE OF NEW YORK, #2006-033-188, Claim No. None, Motion No. M-70876


Synopsis



Case Information

UID:
2006-033-188
Claimant(s):
ANGELO DELISO
Claimant short name:
DELISO
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-70876
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Cappiello Hofmann & Katz, P.C.By: Timothy F. Schweitzer, Esq.
Defendant’s attorney:
Betancourt, Van Hemmen, Greco & Kenyon
By: Virginia A. Harper, Esq. andRonald Betancourt, Esq.
Third-party defendant’s attorney:

Signature date:
June 12, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by Angelo Deliso (hereinafter "movant") due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on January 21, 2005.

Movant seeks 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 movant’s application and, therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD 3d 527). Movant is 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.


June 12, 2006
Hauppauge, New York

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




[1].The following papers have been read and considered on movant’s petition: Notice of Petition dated October 21, 2005 and filed October 27, 2005; Petition of Timothy F. Schweitzer, Esq. sworn to October 21, 2005 and filed October 27, 2005; Affidavit of Timothy F. Schweitzer, Esq. with annexed Exhibits 1-6 sworn to October 21, 2005 and filed October 27, 2005; Memorandum of Law in Support of Petition dated October 21, 2005 and received October 27, 2005; Memorandum of Law in Opposition to Petition dated March 2, 2006 and received March 3, 2006; Affirmation of Virginia A. Harper, Esq. dated March 1, 2006 and filed March 3, 2006; Affirmation of Jack Lee with annexed Exhibit A dated March 2, 2006 and filed March 3, 2006; Supplemental Affirmation of Virginia A. Harper, Esq. with annexed Exhibit 1 dated March 7, 2006 and filed March 8, 2006; Reply Affirmation of Timothy F. Schweitzer, Esq. in Support of Petition with annexed Exhibits 1-3 dated March 7, 2006 and filed March 8, 2006; Reply Affidavit of Angelo Deliso in Support of Petition to File a Late Claim sworn to March 6, 2006 and filed March 8, 2006; Reply Memorandum of Law in Support of Petition dated March 7, 2006 and received March 8, 2006.