New York State Court of Claims

New York State Court of Claims

SANCHEZ v. STATE OF NEW YORK, #2007-030-503, Claim No. NONE, Motion No. M-72462


Synopsis


Late Claim Motion denied. The Attorney for Claimant alleges in his Affirmation that infant injured two years earlier when she 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 York, but no proposed claim is attached nor is any other verification by the infant or her guardian contained in any of the papers submitted. Court of Claims Act §10(6) factors not thoroughly addressed.

Case Information

UID:
2007-030-503
Claimant(s):
TABATHA SANCHEZ infant by mother and natural Guardian FRANCIA SANCHEZ
Claimant short name:
SANCHEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72462
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JEFFREY H. SCHWARTZ, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
January 11, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on Claimant’s motion for permission to


serve and file a late claim brought pursuant to Court of Claims Act §10(6):

1,2 Notice of Motion, Affirmation in Support by Jeffrey H. Schwartz, attorney for claimant

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 York.

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 papers.[1] 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.



January 11, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. A proposed claim must contain the information that would be necessary to comply with Court of Claims Act 11(b) and 22 NYCRR §206.6.