New York State Court of Claims

New York State Court of Claims

TRI-W v. COMMISSIONERS OF STATE INSURANCE FUND, #2006-033-203, Claim No. None, Motion No. M-71473


Case Information

Claimant short name:
Footnote (claimant name) :

COMMISSIONERS OF STATE INSURANCE FUND1 1.Movant shall substitute “The State of New York” as the appropriately named defendant in the Claim.
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:
Adam B. Grossman, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion brought by Tri-W Construction, LLC (hereinafter "movant") due to the alleged breach of contract of the defendant, the State of New York (hereinafter “State”). The alleged breach of contract occurred on May 16, 2003.

Movant seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)[2].

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 and 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 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 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.

September 27, 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 March 22, 2006 and filed March 23, 2006; Affirmation in Support of Adam B. Grossman, Esq., with annexed Exhibits dated March 21, 2006 and filed March 23, 2006; Affidavit in Support of David Wright sworn to March 21, 2006; Affirmation in Opposition of John L. Belford, IV, Esq. dated May 18, 2006 and filed May 23, 2006.