Barbara Lerner moves for permission to file a late claim pursuant to §10.6
of the Court of Claims Act (the “Act”). Ms. Lerner’s proposed
claim is for “breach of patients’ rights, civil rights, negligence,
wrongful imprisonment, [and] other torts . . .” In order to determine
, six factors enumerated in the Act
must be considered: whether (1) defendant had notice of the essential facts
constituting the claim; (2) defendant had an opportunity to investigate the
circumstances underlying the claim; (3) defendant was substantially prejudiced;
(4) claimant has any other available remedy; (5) the delay was excusable and (6)
the claim appears to be meritorious. The factors are not necessarily
exhaustive, nor is the presence or absence of any particular factor
Claimant did not address these
factors in her motion papers. In an August 14, 2007 letter from the Court, she
was offered the opportunity to make an additional submission to address them,
but failed to do so.
The first three factors – whether defendant had notice of the essential
facts, had an opportunity to investigate or would be prejudiced by the granting
of this motion are intertwined and may be considered together. See Brewer v
State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998).
Ms. Lerner’s proposed claim for the most part alleges wrongs against her
by persons and entities other than the State of New York, and to the extent that
the State is mentioned, it is unclear how it is allegedly at fault.
Accordingly, the State did not have notice of the claim or the opportunity to
investigate, and would be prejudiced by the granting of this motion.
With regard to an alternate remedy, to the extent that actors other than the
State have wronged claimant, her remedy would lie outside the jurisdiction of
this Court. As to excuse, claimant has failed to indicate why she did not
timely file a claim.
The remaining factor to be considered is whether the proposed claim appears
meritorious. Ms. Lerner mentions Columbia Presbyterian Hospital and the New
York State Psychiatric Hospital [Institute], but does not demonstrate in any way
what the State did which would give rise to a valid cause of action. The
proposed claim is insufficiently focused for the purposes of §11.b of the
Act. An example of the lack of a legal basis for this lawsuit is the following,
which is typical of Ms. Lerner’s submissions: “The real reason for
the incarceration was to cover up the larger ‘Project Ali’ issue . .
. and have this criminal torture/smear campaign being orchestrated by an
individual with Army-affiliated by the name of Carlos Figueroa . . . who’s
a multi-millionaires with a 2nd big country home, big car, etc . .
In view of the foregoing, having reviewed the
, IT IS ORDERED that motion no.
M-73739 be denied.