New York State Court of Claims

New York State Court of Claims

HENNESSY v. THE STATE OF NEW YORK, #2007-015-194, Claim No. 113289, Motion No. M-73012


Synopsis


Late claim relief was denied where no affidavit from someone with knowledge of the facts was submitted and statutory factors weighed against granting motion.

Case Information

UID:
2007-015-194
Claimant(s):
COLIN HENNESSY
Claimant short name:
HENNESSY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113289
Motion number(s):
M-73012
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
FRIEDMAN, HIRSCHEN & MILLER, LLPBy: Carolyn B. George, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 29, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks permission to file a late claim pursuant to Court of Claims Act § 10(6) or, in the alternative, to deem the previously filed and served claim timely. For the reasons which follow, the motion is denied. Submitted in support of the motion is an attorney's unsworn affidavit and a claim verified by counsel. The claim was allegedly served upon the Attorney General on December 20, 2006 and was filed with the Clerk of the Court on February 2, 2007. Defendant answered the claim and raised as affirmative defenses that the court lacks jurisdiction of the claim because it was not timely filed and served.

It is alleged that the claimant was arrested on June 10, 2006 for violations of VTL § 1192.02, § 1192.03 and Penal Law § 221.05. Claimant allegedly pled guilty to a violation of VTL § 1192 in full satisfaction of the pending Vehicle & Traffic Law charges. The Penal Law § 221.05 unlawful possession of marijuana charge was allegedly dismissed.

The claim alleges as follows:
On or about September 8, 2006, claimant applied for employment with Fed Ex and was denied employment due to negligent record keeping by officers of the State of New York and/or the Office of Court Administration in particular. The State of New York, through its agents, servants and employees had incorrectly reported the disposition of the charges that claimant had been convicted of unlawful possession of marijuana, a violation of Penal Law § 221.05, when the charge had, in fact, been dismissed.

The claim recites that the claimant was arrested on September 11, 2005 in the City of Albany for attempted robbery in the second degree and assault in the second degree, both Class D felonies. These charges were allegedly reduced to a single count of assault in the third degree, a Class A misdemeanor, in violation of Penal Law § 120.00(1). Curiously, the claim alleges that the State incorrectly reported the disposition of the September 11, 2005 charge as a plea of guilty to third degree assault, a violation of Penal Law § 120.00[1]. It is unclear from the allegations of the claim whether the alleged denial of employment on September 8, 2006 was caused by the alleged erroneous reporting of only the disposition of the June 10, 2006 charges, or includes the alleged erroneous report of the disposition of the 2005 charges as well. Claimant's counsel professes no personal knowledge of the facts underlying this claim and her unsworn affidavit submitted in support of the motion references only the allegedly erroneous reporting of a conviction for unlawful possession of marijuana in violation of Penal Law § 221.05 and the resulting denial of employment on September 8, 2006[2].

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". For purposes of this motion the Court will utilize an accrual date of September 8, 2006, the date claimant was allegedly denied employment as the result of the incorrect reports of conviction (cf., Brown v New York State Bd. of Parole, 11 AD3d 842 [2004]). As the claim asserts a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies. Claimant's motion is therefore timely, having been made well within the required time frame.

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 [1994]), and the statutory factors are not exhaustive nor one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). 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 [1993]).

The excuse advanced by claimant's counsel for the failure to timely serve and file the claim is as follows: "The delay in serving the Attorney General's Office was a matter of only a few weeks, and it was not excessive. The claim simply became lost due to the press of activities, and simply became overlooked" (see ¶ 13 of claimant's counsel's unsworn affidavit in support of the motion). Neither an attorney's inattention to a case nor inadequate office procedures constitute acceptable excuses for a delay in filing a claim (Block v New York State Thruway Auth., 69 AD2d 930 [1979]; Ferrer v State of New York, 172 Misc 2d 1 [Ct Cl 1996]; Pulliam v State of New York, Ct Cl, December 9, 2002 [Motion No. M-65968, UID # 2002-019-590] Lebous, J., unreported[3]). This factor weighs against the claimant.

The issues of notice, opportunity to investigate and prejudice to the State will be considered together. Claimant's counsel argues that no prejudice will befall the State because the delay in filing and serving the claim was brief. The last day to file and serve a timely claim based upon the September 8, 2006 denial of employment was December 7, 2006. The claim, however, was served on December 20, 2006 and filed on February 2, 2007 and no argument is made that the State was aware of the essential facts constituting the claim within the 90-day period for filing the claim. Conversely, although the defendant argues that it is prejudiced by the passage of time it fails to set forth with any degree of specificity in what manner it will be prejudiced in the event late claim relief is permitted. The Court finds that although the defendant may not have had notice of the facts underlying this claim within 90 days following the date the claim accrued, the delay in serving and filing the claim was brief and the defendant failed to establish that it will be prejudiced should the motion for late claim relief be granted. The fact that the defendant may still investigate the underlying facts of this claim negates the defendant's conclusory claim of prejudice and 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 [1977]).

Liability may flow from "actions or omissions of non-judicial employees in negligently performing their everyday, ministerial duties" (Marx v State of New York, 169 AD2d 642, 642 [1991]). Even where the act is governmental in nature, liability may be imposed under traditional tort principles for a wrongful act that is ministerial rather than discretionary or quasi-judicial in nature (Lauer v City of New York, 95 NY2d 95, 99 [2000]). It has therefore been held in a variety of contexts that the State is not immune from liability for negligent record-keeping activities (see, e.g., Shaw v Town of Camillus, 288 AD2d 902 [2001] [failing to retire an outstanding warrant against the claimant after the underlying charge had been dismissed]; Ford Motor Credit Co. v State of New York, 133 AD2d 980 [1987] [issuance of certificate of title in the name of the lessee instead of the owner). Accordingly, the allegations in the claim, if true, provide a potential basis for recovery. The problem herein lies not in the theory of recovery alleged, but in the claimant's failure to present a sufficient factual predicate from which this Court may determine the potential merit of the claim. It is well settled that allegations which are too general, conclusory or factually unsupported are insufficient to establish a meritorious claim (Matter of Brown v State of New York, 6 AD3d 756 [2004]; Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]; Witko v State of New York, 212 AD2d 889 [1995]; Sevillia v State of New York, 91 AD2d 792 [1982]). While facts stated in a motion for late claim relief are normally deemed true for the purpose of the motion (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976 [1976]), this rule applies only where the facts are set forth by someone with first hand knowledge (DR v State of New York, Ct Cl, March 9, 2007 [Claim No. 112620, Motion Nos. M-72317, M-72422, UID # 2007-044-510] Schaewe, J., unreported; Jolley v State of New York, 106 Misc 2d 550 [Ct Cl 1980]) . In this case, the facts of the underlying claim are set forth in a claim verified only by the claimant's attorney and no affidavit from someone with first hand knowledge of the facts was submitted in support of this motion. Counsel's conclusory allegations are insufficient to establish the appearance of merit and this factor weighs against the claimant.

Turning to the final factor, it has not been suggested that any alternative remedy exists.

Taking into account the statutory factors, the Court finds them to weigh against granting of the claimant's application for late claim relief. Accordingly, the claimant's motion for late claim relief is denied. While there is no cross-motion to dismiss the pending claim, the Court will dismiss the claim, sua sponte, upon its finding that the claim was untimely served and filed (Lyles v State of New York, 3 NY3d 396 [2004]; Lurie v State of New York, 73 AD2d 1006 [1980], affd 52 NY2d 849 [1981]; Corn Hill Landing, LLC v State of New York, 12 Misc 3d 874 [Ct Cl 2006], appeal dismissed 39 AD3d 1286 [2007]).


May 29, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated February 26, 2007;
  2. Unsworn "Affidavit" of Carolyn B. George dated February 26, 2007 with exhibits;
  3. Affidavit of Dennis M. Acton sworn to March 9, 2007.

[1].Inasmuch as the claim alleges that the September 11, 2005 charges were reduced to a single count of assault in the third degree, the alleged error in the recording of the disposition is not clear.
[2].A second claim (claim no.112277) is pending in which it is alleged that on February 9, 2006 claimant was arrested on a bench warrant for failure to appear in court on December 27, 2005. The bench warrant was allegedly issued in error.
  1. [3]Unreported decisions from the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us./decisions.htm