New York State Court of Claims

New York State Court of Claims

MAZZOLI v. STATE OF NEW YORK, #2007-038-542, , Motion No. M-72839


Motion to file a late claim (Court of Claims Act § 10 [6]) denied. Motion was untimely, and proposed claim lacked appearance of merit.

Case Information

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:
June 12, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 [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]).  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]).

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 [4]), which expired on September 6, 2006. Thus, this motion filed in January of 2007 is untimely, and cannot be granted.

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 [6]). 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 [1982]), 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.

June 12, 2007
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Notice of Motion, filed January 5, 2007;

(2) Proposed Claim, verified December 23, 2006, with exhibits;

(3) Affirmation in Opposition of Patricia M. Bordonaro, AAG, dated March 30, 2007.