John J. Mazzoli (“movant”) seeks permission pursuant to Court of
Claims Act § 10 (6) to file a late claim, in a motion filed on January 5,
2007. The proposed claim alleges that on or about May 16, 2006, an employee of
the New York State Department of Motor Vehicles (hereinafter “DMV”)
failed to provide movant with a copy of a “Notice of Repossession”
relating to a certain vehicle that apparently belonged to claimant. The claim
alleges that the vehicle was unlawfully repossessed by Charles James Auto Sales
on September 1, 2003, that a “Mr. James” did not remove and
surrender the vehicle’s license plates, and that the vehicle sustained
damage while Mr. James drove it during the five days after it was repossessed.
The claim seeks damages due to the alleged negligence of the DMV employee in
failing to fine Mr. James and for not correctly filing paperwork, apparently
related to the repossession and ownership of the vehicle.
The threshold issue is whether this motion is timely. A motion seeking
permission to file a late claim 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 ). 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 ). 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
; Gold v New York State Business Group, Inc., 255 AD2d 628, 630 n
; Marine Midland Bank, N.A. v Jerry Hamam, Inc., 96 AD2d 1137 [4th
Here, movant asserts that the claim accrued on or about May 16, 2006, which is
apparently the time at which movant was not provided with a copy of the
repossession notice by the DMV. However, the claim, which seeks damages in the
amount of $5,000.00, is appended by documents that apparently relate to the
ownership and repossession of the vehicle. Thus, the Court determines that the
claim derives from the alleged wrongful repossession, and that it accrued no
later than September 6, 2003, the end of the five day period during which Mr.
James allegedly failed to surrender the vehicle’s license plates and
wrongfully possessed and damaged the vehicle. Because the claim sounds in
negligence causing damage to property, it is subject to a statute of limitations
of three years (see CPLR 214 ), which expired on September 6,
2006. Thus, this motion filed in January of 2007 is untimely, and cannot be
Even if the motion was timely filed, however, it would not be granted. A court
considering whether to grant permission to file a late claim must evaluate
“whether the delay in filing the claim was excusable; whether the state
had notice of the essential facts constituting the claim; whether the state had
an opportunity to investigate the circumstances underlying the claim; whether
the claim appears to be meritorious; whether the failure to file or serve upon
the attorney general a timely claim or to serve upon the attorney general a
notice of intention resulted in substantial prejudice to the state; and whether
the claimant has any other available remedy” (Court of Claims Act §
10 ). The presence or absence of any particular factor is not controlling
(see Bay Terrace Coop. Section IV, Inc. v New York State Emp.
Retirement System Policemen’s and Firemen’s Retirement System,
55 NY2d 979, 981 ), and the weight accorded the various factors is a
matter within the discretion of the Court.
Movant has offered no excuse for the late filing. There is no allegation that
the State had notice of the essential facts or an opportunity to investigate the
circumstances of the alleged negligence of the DMV employee. In seeking money
damages for the loss of or injury to his vehicle, claimant may have had a remedy
directly against Mr. James, the actual alleged tortfeasor, and the motion does
not reveal whether such a remedy was not pursued or was unsuccessful. These
factors all weigh against granting the motion.
Whether a claim has the appearance of merit is perhaps the weightiest factor
for the Court to consider because Court of Claims Act § 10 (6) reflects a
legislative determination that the Court of Claims should permit a potential
litigant to have his or her day in court (see Calzada v State of New
York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York,
92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a potential litigant should not be
subjected to the futility of pursuing a meritless claim (see Prusack v
State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v
New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). To establish
the merit of a proposed late claim, the motion must demonstrate, inter
alia, that the proposed claim is not patently groundless, frivolous or
legally defective (see Matter of Santana v New York State Thruway
Auth., supra at 11).
The proposed claim lacks the appearance of merit. If the claim for damages
arises from the loss of or damage to movant’s vehicle in September 2003,
the claim is legally defective because, as discussed above, it is time-barred.
If the claim arises from the DMV employee’s failure to provide movant with
a copy of the repossession notice in May 2006, it is patently groundless because
the money damages sought did not arise as a result of this failure to provide
movant with documentary evidence some two and a half years after the vehicle was
allegedly repossessed and damaged.
Thus, upon consideration of weighing all of the factors set forth in Court of
Claims Act § 10 (6), the motion to file a late claim would be denied on the
merits even if it had been timely filed.
Accordingly, Motion No. M-72839 is DENIED.