Motion for permission to file late claim denied (Court of Claims Act § 10 ). No factor favored movant and in particular proposed claim lacked appearance of merit because facts did not demonstrate a breach of any duty owed by the State.
|Claimant short name:||O'NEIL|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE DEPARTMENT OF MOTOR VEHICLE and MS. DEBBIE BENNETT|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||AIMEE O'NEIL, Pro se|
|Defendant's attorney:||ANDREW M. CUOMO, Attorney General of the State of
By: James L. Gelormini, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 21, 2007|
|See also (multicaptioned case)|
Movant seeks permission to file a late claim that seeks damages allegedly due to the failure of a "Ms. Bennett," apparently an employee of the Department of Motor Vehicles (DMV), "to cite Mr. James operation for numerous violations according to NYS laws." As set forth in the proposed claim, the claim accrued on September 1, 2004. The instant motion was filed on October 5, 2006, almost two years after the 90-day period within which to timely file the claim expired (see Court of Claims Act § 10 ).
In deciding a motion to file a late claim, the Court must consider under Court of Claims Act § 10 (6) "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." 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 proffers no excuse for the delay in filing the claim.
Whether the State had notice of the essential facts underlying the proposed claim, whether it had an opportunity to investigate, and whether commencement of the claim beyond the allowable time period has resulted in substantial prejudice to the State are related factors that may be addressed together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Movant does not contend or address whether the State had notice of the essential facts or whether it had an opportunity to investigate the circumstances underlying the claim, and the proposed claim lacks sufficient factual detail to permit a determination of whether the State would suffer substantial prejudice as a result of the late filing. Movant does not address the unavailability of another remedy, and the stated facts are insufficient to permit a determination of whether another remedy may be available.
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]). The facts alleged in the proposed claim do not support a viable claim because they do not reveal the nature of the duty owed by the State to movant. The proposed claim alleges that a 1997 Mercury Sable was unlawfully repossessed by Charles James Auto Sales after a communication with Pathfinder Bank, but does not assert facts that demonstrate movant's ownership of the vehicle or her relationship with the car dealer or the bank. Further, the allegations in the proposed claim about Mr. James' failure to "enter NYS DMV repossession notice," and the actions or alleged omissions by DMV or its employee fail to reveal a breach of any duty owed to movant by the State. Accordingly, the proposed claim lacks the appearance of merit.
Upon consideration of the factors set forth in Court of Claims Act § 10 (6), the Court finds that movant has not demonstrated that any of those factors weigh in favor of granting the motion for permission to file a late claim.
Accordingly, M-72416 is DENIED.
June 21, 2007
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion, dated October 3, 2006;
(2) Claim, verified October 4, 2006, with exhibits;
(3) Affirmation of James L. Gelormini, AAG, dated March 27, 2007.