New York State Court of Claims

New York State Court of Claims

SCHAUMBERGER v. THE STATE OF NEW YORK, #2006-033-215, Claim No. None, Motion No. M-72219


Synopsis



Case Information

UID:
2006-033-215
Claimant(s):
PAUL SCHAUMBERGER
Claimant short name:
SCHAUMBERGER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1.The Court sua sponte amends the caption to read The State of New York as the Defendant. All future filings by the parties will reflect the appropriate defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-72219
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Paul Schaumberger, Pro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 27, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by Paul Schaumberger (hereinafter "movant") due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on October 17, 2005 in Port Washington, New York.

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 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 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, and to take note of the Court’s amendment of the caption.


December 27, 2006
Hauppauge, New York

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




[2].The following papers have been read and considered on movant’s motion: Notice of Motion dated August 28, 2006 and filed September 1, 2006; Affidavit in Support for Permission to Submit a Late Claim with annexed Exhibits sworn to August 28, 2006 and filed September 1, 2006; Affirmation in Opposition of Todd A. Schall, Esq. dated September 20, 2006 and filed September 21, 2006.