New York State Court of Claims

New York State Court of Claims

WENTWORTH v. THE STATE OF NEW YORK, #2006-039-002, Claim No. None, Motion No. M-71663


Synopsis



Case Information

UID:
2006-039-002
Claimant(s):
TONYA WENTWORTH
Claimant short name:
WENTWORTH
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-71663
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Tonya Wentworth, pro se
Defendant’s attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
by: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 28, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Tonya Wentworth (hereinafter “movant”) seeks permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6). That section allows the Court to exercise its discretion and permit the late service and filing of a claim. However, it also provides, in relevant part, that an application to file a late claim must include “the claim proposed to be filed.” Moreover, “[o]ne of the factors to be considered [in determining an application to file a late claim] is whether the claim has the appearance of merit, as it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the claimant’s motion” (Savino v State of New York, 199 AD2d 254, 254-255 [1993]).

Here, movant’s application does not include a proposed claim, nor does her supporting affidavit contain any information regarding the nature of the claim. The absence of a proposed claim (see Pino v State of New York, Ct Cl, February 27, 2006, UID# 2006-015-073, Motion No. M-71048; Larocco v State of New York, Ct Cl, May 24, 2004, UID# 2004-009-33, Motion No. M-68085; Grant v State of New York, Ct Cl, September 6, 2000, UID# 2000-001-049, Motion No. M-61919), considered together with the complete lack of information in movant’s supporting affidavit from which to determine “whether the claim has the appearance of merit” (Savino v State of New York, supra at 254-255; see also Court of Claims Act § 10 [6]), necessitates the denial of her motion for leave to serve and file a late claim.

Accordingly, it is ORDERED that Motion No. M-71663 is hereby denied.


November 28, 2006
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims








Papers Considered:

  1. Notice of Motion dated April 24, 2006;
  2. Affidavit of Claimant in Support of Motion, sworn to on April 24, 2006; and
  3. Affirmation in Opposition dated May 18, 2006 with exhibit.