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, Inc. 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 . . .” § 10(6) Court of
Claims Act. Here, the applicable statute of limitations is three (3) years,
thus the motion is timely. Civil Practice Law and Rule §214.
A claim appears to be “meritorious” within the meaning of the
statute if it is not patently groundless, frivolous or legally defective and a
consideration of the entire record indicates that there is reasonable cause to
believe that a valid cause of action exists. Matter of Santana v New York
State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a
prima facie case at this point, but rather the appearance of merit.
Claimant does not offer any reasonable excuse as to why the claim was not
served and filed within ninety (90) days of its accrual on July 22, 2006 when
Federico Spista alleges he collided with a vehicle owned by one of the agencies
of the State of New York. [See Affidavit of Federico Spista, ¶3].
Claimant has not established any reasonable excuse for the delay between the
time the claim purportedly arose and the time this application was made.
Accordingly, this factor weighs against it.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh marginally toward granting Claimant's
motion. The State is not assumed to have actual knowledge of events giving rise
to a claim merely because an agency may have addressed accident claims,
nonetheless, the passage of time has not been so great that the State's ability
to investigate is impeded to its prejudice. Cf. Edens v State of New
York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months
from date of accrual). Accordingly, these factors weigh in favor of granting
The proposed Claim indicates that on July 22, 2006 at Mamaroneck Avenue in
White Plains, New York a vehicle owned by the “NYS UMRDD” and
operated by Doris E. Taggart struck the subrogor’s vehicle. [Affirmation
by Ying Hua Huang, Exhibit A]. Damages in the amount of $2,387.31 are sought.
It is well settled that the appearance of merit is viewed as the most important
factor to consider in an application to serve and file a late claim, as it would
be an act of futility to permit service of a late claim when it is patently
defective or is subject to a complete defense. Defendant argues that on the face
of the claim, even if all allegations are accepted as true, there is no
indication of how the accident occurred or how the State vehicle was negligent,
and that the claim is “devoid of any allegations of negligence or
carelessness on the part of the State of New York.” [Affirmation in
Opposition by Vincent M. Cascio, ¶8]
The court agrees that the allegations contained in the proposed claim do not
say what kind of State vehicle was involved in the accident, nor is there any
description of the conduct by the State vehicle allowing anyone reviewing the
Claim to discern exactly what happened. Indeed, even the affidavit of Mr. Spista
does not say what happened, although the accident report and the correspondence
between the claims adjusters and claimant appear to indicate that each driver
blamed the other for a collision, with Mr. Spista indicating that the State
vehicle “rear ended” him. [See Affirmation by Ying Hua Huang,
Exhibits B, C, D]. Merely alleging general negligence on the part of the State
does not show the appearance of merit for late claim purposes. Accordingly,
Claimant's motion [M-73480] for permission to serve and file a late claim is
hereby in all respects denied.