New York State Court of Claims

New York State Court of Claims

DELLACRUZ v. THE STATE OF NEW YORK, #2007-028-542, Claim No. NONE, Motion No. M-71936


Synopsis


Claimant’s motion for permission to file a late claim is denied.


Case Information

UID:
2007-028-542
Claimant(s):
ANGEL DELLACRUZ
Claimant short name:
DELLACRUZ
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-71936
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
ANGEL DELLACRUZ, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Michael C. Rizzo, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Movant’s application pursuant to Court of Claims Act § 10(6) for permission to file a late Claim:

1) Motion filed June 28, 2006;

2) Affidavit in Opposition of Assistant Attorney General Michael C. Rizzo

(Rizzo Affidavit), filed July 25, 2006; and

3) Reply Letter of Angel Dellacruz (Dellacruz Letter) with annexed Exhibit, received November 21, 2006.

Angel Dellacruz (Movant) seeks the Court’s permission to file a late claim against the Defendant alleging that Defendant’s negligence resulted in loss of personal property when his vehicle was impounded by law enforcement officials. The vehicle was impounded when Movant was arrested on March 27, 2005 and taken to Kinetic Towing Company. Movant was subsequently incarcerated in Saratoga County Jail.

The factors a Court must consider in determining a motion for permission to file a late claim pursuant to CCA § 10 (6) are whether 1) the delay in filing the claim was excusable, 2) the State had notice of the essential facts constituting the claim, 3) the State had an opportunity to investigate the circumstances underlying the claim, 4) the claim appears to be meritorious, 5) the failure to file or serve upon the attorney general a timely claim or notice of intention resulted in substantial prejudice to the State, and 6) there is any other available remedy (see Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 [3d Dept. 1991]; Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 [1982]).

A motion is procedurally defective if the movant fails to submit a proposed claim with his motion papers as required by Court of Claims Act § 10 (6) (see Davis v State of New York, 28 AD2d 609, 610 [3d Dept 1967][addressing former section 10 (5)]; see also Walach v State of New York, 91 Misc 2d 167, 169 [1977], affd 69 AD2d 1015 [4th Dept 1979]). Rather than attaching a separate proposed claim to his motion papers, Movant set forth the factual allegations that constitute his claim in the second and third paragraphs of his motion. Consequently, Movant’s application should be denied because it is procedurally defective.

Assuming, arguendo, that Movant had properly submitted a proposed claim, the motion would still be denied.

Movant’s proffered excuse for the delay in filing is the fact that he has been incarcerated since the alleged incident. As alleged, Movant’s excuse is unavailing unless the conditions of incarceration are shown to have directly prevented his ability to institute an action (see Plate v State of New York, 92 Misc 2d 1033, 1037-1038 [1978]; Bommarito v State of New York, 35 AD2d 458 [4th Dept 1971]). Moreover, ignorance of the law is not an acceptable excuse for the failure to timely commence this claim (Innis v State of New York, 92 AD2d 606 [2d Dept 1983], affd 60 NY2d 654). Accordingly, this factor would weigh against Movant’s application.


In reviewing the six factors listed in the statute, the Courts have considered the most decisive factor to be whether the proposed Claim appears to be meritorious. It would be futile to permit the Movant to proceed if his Claim is likely to be deemed meritless (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [1977]).

Kinetic Towing Company is not an agency of Defendant State of New York and Movant has failed to allege that Defendant is liable for its actions under the theory of respondeat superior. The Court would find, therefore, that Claimant failed to allege a meritorious claim, and would deny the motion on that ground.

Having considered the relevant statutory factors, the Court finds that the factors weigh against Movant’s application and his motion is denied.







March 30, 2007
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims