New York State Court of Claims

New York State Court of Claims

HERNANDEZ v. THE STATE OF NEW YORK, #2007-015-155, Claim No. NONE, Motion No. M-72512


Late claim relief was denied where movant failed to submit a proposed claim in support of his motion and failed to establish the merit of the claim as a reasonable excuse for the delay in filing it.

Case Information

1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Luis Hernandez, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 28, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. Movant is an inmate at Mt. McGregor Correctional Facility. As gleaned from a grievance form submitted together with the motion, the movant sustained a minor scrape on his hip when he was “hit [by] a car while snowblowing”, presumably at Washington Correctional Facility where the grievance was filed. Neither a proposed claim nor the details of the accident or the injuries allegedly sustained were provided. Late claim applications are governed by section 10 (6) of the Court of Claims Act which, in relevant part, provides:
The application for such permission shall be made upon motion returnable at any regular or special session of the court and may be heard and determined by any judge thereof. The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application. In determining whether to permit the filing of a claim pursuant to this subdivision, the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.

The absence of a proposed claim is fatal to an application for late claim relief (see Grant v State of New York , Ct Cl, September 6, 2000 [Claim No. None, Motion No. M-61919, UID # 2000-001-049] Read, P.J., unreported; Larocco v State of New York, Ct Cl, May 24, 2004 [Claim No. None, Motion No. M-68085, UID # 2004-009-33], Midey, J., unreported). Moreover, the movant completely failed to establish the potential merit of the claim, the most important factor in determining an application for late claim relief (see Savino v State of New York, 199 AD2d 254 [1993]). The meritorious nature of a claim is sufficiently established where the movant demonstrates that the proposed claim is not "patently groundless, frivolous, or legally defective" and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [1977]). Here, the movant has failed to set forth how the accident occurred or the severity of his injury. In addition he has failed to establish that the delay in filing the claim was excusable. Ignorance of the law is not a valid excuse for the failure to timely file a claim (Lynch v State of New York, 2 AD3d 1002 [2003]). Denial of an application for late claim relief is appropriate where "the excuse offered for the delay is inadequate and the proposed claim is of questionable merit" (Robertson v State of New York, 35 AD3d 948 [2006]; Matter of Perez v State of New York, 293 AD2d 918 [2002]).

The fact that the State may have had notice of the claim and an opportunity to investigate as movant alleges is insufficient to support late claim relief. Given the absence of a proposed claim, the lack of a reasonable excuse for failure to timely file and the lack of factual detail in movant's affidavit, late claim relief is inappropriate. Accordingly, movant's application for late claim relief is denied.

February 28, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion filed November 8, 2006;
  2. Affidavit of Luis Hernandez sworn to October 18, 2006 with exhibits;
  3. Affirmation of Michael W. Friedman dated November 21, 2006.