New York State Court of Claims

New York State Court of Claims

O’NEIL v. NYS UNIFIED COURTS and JUDGE JAMES McCARTHY, #2007-038-527, , Motion No. M-72729


Case Information

AIMEE O’NEIL, Parent and MORGAN A. BAKER (Child)
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Patricia M. Bordonaro, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion for permission to file a late claim for damages allegedly sustained by claimants Aimee O’Neil and Morgan A. Baker. The proposed claim alleges that defendant Judge McCarthy made a decision in a Family Court matter without having heard the testimony of an allegedly important witness, and further alleges other acts of negligence. The decision complained of was made on April 30, 2001. The motion to file a late claim was filed on December 26, 2006. For the reasons that follow, the motion will be denied in its entirety. To the extent the motion to file a late claim is addressed to injuries suffered by claimant Aimee O’Neil, individually, such a motion must be filed “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]). The failure to file the motion within the prescribed time period is a jurisdictional defect which precludes the court from granting such a motion (see Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806 [1997]).

Claimant’s notice of motion states that the proposed claim is based upon negligence, and also that it is based upon fraud and breach of contract, to which six-year statutes of limitations apply (see CPLR 213 [2]; [8]). A court that is evaluating a cause of action for purposes of determining the applicable statute of limitations is not bound by the claimant’s characterization of the nature of the cause of action, but must examine and determine the true gravamen of the cause of action (see Western Elec. Co. v Brenner, 41 NY2d 291, 293 [1977]; Gold v New York State Business Group, Inc., 255 AD2d 628, 630 n [1998]; Marine Midland Bank, N.A. v Jerry Hamam, Inc., 96 AD2d 1137 [4th Dept 1983]). “The elements of fraud include a misrepresentation, known by the defendant to be false and made for the purpose of inducing the plaintiff to rely upon it, justifiable reliance and damages” (Mora v RGB, Inc., 17 AD3d 849, 852 [3d Dept 2005]; see Channel Master Corp. v Aluminum Limited Sales, Inc., 4 NY2d 403, 406-407 [1958]). Here, the proposed claim is utterly devoid of factual allegations that would support any of the elements of a fraud claim. Similarly, there is no allegation that would support the existence of a contractual agreement between claimant and defendant, either express or implied. Accordingly, the six-year statutes of limitations based on causes of action for fraud or breach of contract are inapplicable. The allegations in the claim of negligence are subject to a three-year statute of limitations (see CPLR 214). As the claim accrued in April 2001, the applicable statute of limitations expired in April 2004. This motion for permission to file and serve a late claim on behalf of Aimee O’Neil was not filed until December 2006. Thus, it comes before the Court beyond the time periods set forth in Article 2 of the CPLR, and its merits cannot be considered.

At the time this motion was made, claimant Morgan Baker was ten years old,[1] and thus, she remains under the legal disability of infancy (see CPLR 105 [j]). Accordingly, her time within which to file and serve her claim as of right has not expired (see Court of Claims Act § 10 [5]; McKenzie v State of New York, Motion No. M-71968, Schweitzer, J., [Sept. 22, 2006]). Therefore, she does not need permission to file a late claim (see Boland v State of New York, 30 NY2d 337, 343 [1972]; Brown v State of New York, UID # 2006-009-027, Motion No. M-71127, Midey, Jr., J. [May 8, 2006]; DuPont v State of New York, UID #2003-018-223, Motion No. M-66294, Fitzpatrick, J. [May 28, 2003]), as she may file and serve her claim as of right within two years after the disability is removed (see Boland v State of New York, supra at 343). Therefore, the motion to file a late claim on behalf of Morgan Baker is denied as unnecessary.

Motion No. M-72729 is DENIED.

March 30, 2007
Albany, New York

Judge of the Court of Claims

Papers considered:

(1) Notice of Motion, dated December 5, 2006;

(2) Proposed Claim, verified October 4, 2006;

(3) Affirmation in Opposition of Patricia M. Bordonaro, A.A.G., dated January 5, 2007.

[1]. A document submitted by claimant Aimee O’Neil in support of an unrelated motion for permission to file a late claim (see O’Neil v New York State Department of Education & ano., Motion No. M-72728, DeBow, J. [Mar. 30, 2007]) establishes that Morgan Baker’s date of birth is April 8, 1996.