New York State Court of Claims

New York State Court of Claims

HUNTER v. THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2006-033-216, Claim No. None, Motion No. M-71943


Synopsis



Case Information

UID:
2006-033-216
Claimant(s):
HAROLD HUNTER
Claimant short name:
HUNTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-71943
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Sacks and Sacks, LLP
By: Lyaman F. Khashmati, Esq. andAndrew R. Diamond, Esq.
Defendant’s attorney:
John T. Ryan & Associates By: Robert F. Horvat, Esq.
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 Harold Hunter (hereinafter "movant") due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on September 13, 2005 on the Northern State Parkway near the Hicksville Road Exit, Hicksville, New York.

Movant seeks permission to file a late claim against the State of New York and the New York State Thruway Authority pursuant to Court of Claims Act §10(6)[1]. The Court takes judicial notice of the fact the New York State Thruway Authority has no authority or connection to the Northern State Parkway on Long Island (defendant’s Exhibit A). Therefore, movant’s application as to the New York State Thruway Authority is denied.

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 against the State of New York (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.


December 27, 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 motion: Notice of Motion dated June 28, 2006 and filed June 30, 2006; Affirmation in Support of Lyaman F. Khashmati, Esq. with annexed Exhibits 1-6 dated June 28, 2006 and filed June 30, 2006; Affidavit of Harold Hunter sworn to June 2, 2006 and filed June 30, 2006; Affirmation in Opposition of Robert F. Horvat, Esq. with annexed Exhibit A dated August 31, 2006 and filed September 5, 2006; Reply Affirmation in Further Support of Application to File a Late Notice of Claim of Andrew R. Diamond, Esq. with annexed Exhibits 1-4 dated September 21, 2006 and filed September 22, 2006; Amended Affidavit of Harold Hunter sworn to September 20, 2006 and filed September 22, 2006.