New York State Court of Claims

New York State Court of Claims

CONDIT v. STATE OF NEW YORK, #2007-037-011, Claim No. NONE, Motion No. M-72823


Synopsis


Movant’s motion to late file a claim denied.

Case Information

UID:
2007-037-011
Claimant(s):
WILLIAM C. CONDIT, JR.
1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Claimant short name:
CONDIT
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72823
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Hogan & Willig, PLLCBy: John DeFazio, M.D., Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Wendy E. Morcio, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 9, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following were read and considered with respect to Movant’s motion for permission to file a late notice of intention to file a claim:

1. Notice of motion and affirmation of John L. DeFazio, Esq. dated January 8, 2007;

2. Opposing affidavit of Assistant Attorney General Wendy E. Morcio sworn to on February 1, 2007, with attached Exhibit A.

Movant seeks permission to late file a notice of intention to file a claim against the State of New York. This is the same relief requested by Movant in his motion no. M-72338, denied by the Court in a decision and order filed November 17, 2006. In the prior decision and order, Movant was advised that the requested relief did not exist in Court of Claims practice, and that the sole relief available to Movant was a motion to seek permission to late file a claim pursuant to § 10 (6) of the Court of Claims Act. While generally referring to § 10 (6) of the Court of Claims Act in his present motion, Movant continues to request permission to late file a notice of intention to file a claim, relief which still does not exist in Court of Claims practice.

Moreover, in the prior decision and order, the Court attempted to distinguish practice in the Court of Claims from practice in Supreme Court. Unfortunately, it is apparent from a reading of the most recent motion papers that this distinction was lost on Movant as there is no attempt made to address all of the statutory factors enumerated in § 10 (6) of the Court of Claims Act which must be considered before the Court may exercise its discretion and permit the late filing of a claim. While Movant attempts to explain the delay in filing a claim and argues that the State had notice and, therefore, presumably the opportunity to investigate, Movant fails to state whether other remedies are available and fails to address what is often described as the most important of the statutory factors - merit, as it would be futile to permit a meritless claim to proceed (see Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1 [1977]). It is Movant’s burden to prove that the proposed claim has at least the appearance of merit (see Nyberg v State of New York, 154 Misc 2d 199 [1992]). The general rule is that a proposed claim will be considered as demonstrating the appearance of merit if it is not patently groundless, frivolous, or legally defective, and, upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana, supra at 11).

Court of Claims Act § 10 (6) requires that a copy of the claim proposed to be filed accompany a motion for permission to late file a claim. While Movant refers in the motion papers to the “proposed notice of claim” allegedly attached as Exhibit A, no proposed claim or even an improperly denoted “notice of claim” is annexed to Movant’s motion papers as filed with the Clerk of the Court.[2] When the Court of Claims Act directs the Court to consider whether the claim has merit, it is the proposed claim that the Court must consider. Without a proposed claim, the Court is precluded from making any meaningful review of the merits of this application. Defendant, however, has submitted evidence to establish that a private contractor, and not the State, was responsible for the maintenance of traffic in the area of the accident and submits a copy of the police report which indicates that Movant, who was riding a bicycle, made a left turn in front of a motor vehicle traveling in the same direction. In addition, Defendant refers to the qualified immunity from liability arising out of highway planning design decisions accorded the State (see Weiss v Fote, 7 NY2d 579 [1960]). Movant has neither discussed nor refuted the factual and legal arguments raised by Defendant, which arguably entitles the Court to presume that the merit factor to be considered by the Court weighs against Movant’s application (see Cole v State of New York, 64 AD2d 1023 [1978]). Put another way, Movant has failed to demonstrate even the appearance of merit (see Nyberg v State of New York, supra).

Accordingly, the Court declines to exercise its discretion and it is hereby

ORDERED, that motion no. M-72823 is denied.



March 9, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[2]. Movant’s motion papers also refer to the affidavit of William C. Condit, Jr., which was allegedly attached as Exhibit B. No such affidavit was annexed to the motion papers as filed.