1,2 Notice of Motion, Affirmation in Support by Jeffrey H. Schwartz, attorney
No Opposition Filed
The Attorney alleges in his Affirmation that on September 16, 2005 at
approximately midnight Tabatha Sanchez, an infant, fell out of a window two
floors above-ground due to the lack of supervision and improper security upon
the premises while in the custody of the Saint Cabrini Home in Poughkeepsie, New
No proposed claim is attached nor is any other verification by the Claimant
contained in any of the papers submitted.
After indicating that he was “just retained,” in his affirmation
dated October 20, 2006, the attorney indicates that “[t]he reason that the
application was not made sooner was due to the infancy of Petitioner and her
serious physical disability . . . ” He also states: “[t]he factors
set forth in the statute and Court Rules for the granting of the instant relief
have been fully satisfied There was actual notice on the part of the agents of
the State on the very date of same accident was fully reported. There were
numerous witness . . . and therefore the will be no prejudice because they had
actual notice and the statutory factors have been satisfied in addition to the
foregoing reasonable excuses for the delay.” (sic)
In order to determine an application for permission to serve and file a late
claim, the Court must consider, “among other factors,” the six
factors set forth in §10(6) of the Court of Claims Act. The factors stated
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely serve upon the Attorney General a
claim or notice of intention to file a claim, and the failure to timely file the
claim with the Court of Claims; and (6) whether any other remedy is available.
The Court is afforded considerable discretion in determining whether to permit
the late filing of a claim. See e.g. Matter of Gavigan v State of New
York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any
particular factor is not dispositive Bay Terrace Coop. Section IV v New York
State Employees’ Retirement System Policemen’s & Firemen’s
Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New
York, 288 AD2d 172 (2d Dept 2001).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed “. . . at any time 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 . . . ” Court of Claims Act
§ 10(6). Here, the applicable statute of limitations is three (3) years.
Civil Practice Law and Rules §214. The Court does not address the alleged
infancy of the injured party, since there is no indication of Tabatha’s
date of birth [See Civil Practice Law and Rules §105(j)], but such
might operate to toll the statute of limitations. See Court of Claims Act
§10(5); Civil Practice Law and Rules §208.
Most importantly, a proposed claim must be submitted with the motion for
permission to serve and file a late claim. Court of Claims Act §10(6). No
proposed claim has been submitted with the
On this ground alone the motion must
be denied. Additionally, most of the factors required to be addressed have not
been addressed in the application.
Accordingly, Claimant’s motion for permission to serve and file a late
claim is hereby DENIED.