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