In support of dismissal the defendant contends that neither the claim nor a
notice of intention to file a claim was filed and served within 90 days after
the claim accrued as required by Court of Claims Act § 10(3). Inasmuch as
the accident occurred in December of 2005, defendant established that the claim
served on November 20, 2006 and filed on November 29, 2006 was untimely.
Accordingly, the defendant's motion to dismiss the claim as untimely is granted.
Turning to the claimant's motion for permission to file a late claim, the Court
notes that claimant's motion is unaccompanied by a notice of motion. However,
the affidavit of service indicates that the motion papers and correspondence
expressing claimant's request for late claim relief were served upon the
Attorney General on January 3, 2007. Under these circumstances the Court will
consider the motion.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the following
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 first issue for determination upon a late claim motion is whether the
application is timely. Subdivision 6 of Section 10 requires that a motion to
file a late claim be made "before an action asserting a like claim against a
citizen of the state would be barred under the provisions of article two of the
civil practice law and rules." Since the proposed
asserts a negligence cause of action,
the three year Statute of Limitations set forth in CPLR § 214 applies.
Claimant's motion is therefore timely.
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965). The statutory factors are not exhaustive nor is any one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117
). The most important factor is whether the potential claim has merit, as
it would be a futile exercise to permit litigation of a clearly baseless lawsuit
(Savino v State of New York, 199 AD2d 254 ).
The excuse advanced by the claimant for the failure to timely serve and file
his claim is that he did not realize the severity of his injuries until one year
subsequent to the accident. He states that it was not until December of 2006
that he was informed by a doctor that his "pinch[ed] nerves and joint injuries
were probably related to the accident". No medical report nor other factual
detail is provided with respect to the claimant's course of treatment or the
onset of his pain. In the absence of this information the Court finds that the
excuse offered for the failure to timely file the claim is inadequate.
The intertwined issues of notice, opportunity to investigate and prejudice to
the State will be considered together.
Claimant states that the State had notice of the essential facts constituting
the claim "in that medical personnel in the prison were aware of [his] injury;
the State had the opportunity to investigate the cause of this injury . . . and
they have fully investigated the same finding I was not at fault in the accident
nor was I nor anything I did the cause of same" (see ¶ 3 of motion
for permission to file late claim). Claimant's allegations sufficiently
establish that the State had notice of the accident and an opportunity to
investigate. Under these circumstances, prejudice cannot be shown. These
factors weigh in favor of the claimant.
With respect to the required showing of merit, the claim is sufficiently
established if the claimant 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 ; Fowx v State of New York,
12 Misc 3d 1184(A)  ).
Here, the claimant failed to provide sufficient details of the accident or the
injury to enable the Court to determine that the proposed claim is not patently
groundless or legally defective. Although the claimant indicates in his
proposed claim that the accident occurred due to the correction officer
speeding on a "snowy day", this scant information is insufficient to permit the
conclusion that the defendant may be at fault for the accident. In addition, it
is unknown whether the vehicle operated by the correction officer was owned by
the defendant or operated during the course of the correction officer's
Moreover, recovery for personal injuries sustained in a motor vehicle accident
requires a threshold determination that the claimant sustained a "serious
or loss greater than "basic economic
loss" as defined by § 5102(a) and § 5102 (d) of the Insurance Law
Insurance Law § 5104 [a]). No evidence has been submitted
relative to either economic loss or the nature and extent of the injuries
allegedly sustained by the claimant (Toure v Avis Rent A Car Systems
NY2d 345 ). Recovery is foreclosed in those cases in which the injury is
no more than a minor, mild or slight limitation of movement (Licari v
, 57 NY2d 230, 236 ). Here, there is nothing before the Court
from which it could be concluded that the claimant suffered a "serious injury"
or loss greater than the "basic economic loss" as required by the Insurance Law
(see Richards v State of New York
, Ct Cl, March 27, 2006 [Motion
No. M-70768, UID #2006-036-504] Schweitzer, J.,
As to the final factor to be considered, it is unknown whether or not an
alternative remedy exists since the owner of the motor vehicle involved in the
accident has not been disclosed.
The fact that the State may have had notice of the accident and an opportunity
to investigate as claimant alleges is insufficient to support late claim relief.
The most important factor, the merit of the claim, has not been demonstrated nor
has a reasonable excuse for the delay. Under these circumstances, the Court
declines to exercise its discretion to permit the filing of a late claim and the
claimant's motion for such relief is denied (Robinson v State of New
York, 35 AD3d 948 ; Perez v State of New York, 293 AD2d 918