New York State Court of Claims

New York State Court of Claims


HOWARD MILLS, SUPERINTENDENT, #2007-041-022, Claim No. 113472, Motion No. M-73194


Application to file late claim denied where the Court lacks subject-matter jurisdiction over the proposed claim against State agency alleging failure to enforce State Insurance Law.

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:
CHARLENE MARSHfor insured Zoe Marsh-Leigh, Pro Se
Defendant’s attorney:
New York State Attorney GeneralBy: Saul Aronson, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 29, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Charlene Marsh, through a power of attorney for Zoe Marsh-Leigh (claimant), her daughter, moves for an order directing the defendant to “bring Travelers Insurance Vice President of Claims to meet with Claimant and enforce N.Y. State Insurance Law or find [sic] Travelers for not honoring the language of said Homeowners Policy # 9778028776321.” Claimant, in replying to defendant’s papers in opposition to her motion, also seeks permission to file and serve a late claim against defendant seeking “punitive damages because the defendant failed its duty to claimant by not taking or threaten disciplinary action against the breaching party.” All of the relief requested is denied and the claim is dismissed, sua sponte, for lack of subject matter jurisdiction.

Claimant’s primary dispute is with her insurance company (Travelers) with respect to a fire which occurred at the claimant’s residence on May 28, 2005. Claimant alleges that Travelers has engaged in unfair settlement practices in violation of the New York State Insurance Law. Claimant began complaining to the defendant on July 13, 2005 and continued to complain to defendant at least until January 5, 2006, when she was allegedly told by defendant that “the New York State Department of Insurance’s only obligation to consumers are to be sure that the Insurance companies are solvent . . . .” Claimant states that it was “that lie [which] prompted me to bring this action.”

Initially, the Court will recount the somewhat confusing (and sometimes misidentified by the parties) series of filings in this matter. On March 21, 2007, claimant filed her motion (seeking to compel Travelers to meet with claimant) with the Clerk of the Court of Claims. On that same day, claimant also filed a claim with the Clerk of the Court of Claims alleging that the defendant failed to investigate her complaints against Travelers and failed to enforce the New York State Insurance Law. The claim seeks damages of $393,000 from defendant and alleges that the claim accrued on March 5, 2007. The basis of the March 5, 2007 accrual date is a letter allegedly received by claimant from defendant on March 5, 2007, and referred to as Exhibit C of claimant’s “Answer to Opposition Motion to File Late.” Exhibit C, however, consists only of a copy of an envelope and claimant has failed to provide the Court with a copy of the purported letter of March 5, 2007.

On April 2, 2007 defendant filed and served its opposition to what defendant refers to as claimant’s motion to file a late claim, although no papers being considered by the Court are denominated by claimant as an application to file a late claim. On April 3, 3007 defendant filed and served an answer to the claim filed by claimant on March 21, 2007.

Although claimant has made reference to a letter from defendant of March 5, 2007 which allegedly caused claimant to file her claim, it is clear from claimant’s own statement that her claim accrued no later than January 5, 2006 when defendant allegedly told claimant the “lie [that] prompted me to bring this action.”

Pursuant to Court of Claims Act § 10(3):

“A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim . . . .”

The claim was not timely filed and served, and the Court will therefore treat the motion of March 21, 2007 as an application to file a late claim.

Pursuant to Court of Claims Act § 10 (6) the Court, upon application and in its discretion, may permit the late filing and service of a claim “at any time 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.” The statute requires that the “claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application.”

In determining the application, Court of Claims Act § 10(6) provides that:
“The court shall consider, among other factors, 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.”

Case law interpreting the statute instructs that “[i]n arriving at such a determination, the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling” (Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]). In fact, “nothing in the statute makes the presence or absence of any one factor determinative” (Bay Terrace Co-op. Section IV, Inc. v New York State Employees’ Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, “it is well settled that the Court of Claims’ broad discretion in this area should be disturbed only in the face of clear abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]). Finally, denial of an application will not be disturbed “when the excuse offered for the delay is inadequate and the proposed claim is of questionable merit” (Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; see Brown v State of New York, 6 AD3d 756, 757 [3d Dept 2004]).

Claimant has offered no excuse for her delay in filing and serving the claim other than pointing to the alleged letter from defendant of March 5, 2007. As set forth above, claimant, by her own admission, had already decided to make a claim against defendant on January 5, 2006.

More importantly, however, the claim is patently without merit. The Court lacks subject matter jurisdiction over the proposed claim and when “the Court of Claims lacks subject matter jurisdiction, it is reversible error for the court to consider and grant a motion to file a late claim” (Taylor v State of New York, 160 Misc 2d 120, 122-123 [Ct Cl 1994]).

The claim alleges that defendant failed to investigate her complaints against Travelers and failed to enforce the New York State Insurance Law. The Court lacks subject matter jurisdiction over such a claim. Claimant challenges the discretionary administrative actions or inactions of the Insurance Department. “The appropriate remedy for such a challenge is a CPLR article 78 proceeding” (Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]). In particular, claimant alleges that defendant has failed to perform a duty it was mandated to perform by law. Thus, the claim is in the nature of a mandamus to compel and such relief is available, if at all, only by way of an Article 78 proceeding, commenced in Supreme Court (Matter of McCullough v State of New York, 278 AD2d 709 [3d Dept 2000], lv dismissed 96 NY2d 754 [2001], lv denied 96 NY2d 706 [2001]).

Although claimant asserts that she has been damaged in the amount of $393,000.00, it is clear that this sum is what she seeks as a recovery under her insurance policy. The jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as to compel action by a state agency), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).

Finally, claimant’s attempt to avoid the equitable nature of her claim by characterizing it as one for punitive damages fails as well since “it is a matter of public policy that punitive damages are not available against the State of New York” (Keskin v State of New York, 14 Misc 3d 537, 544, [Ct Cl 2006]; see Sharapata v Town of Islip, 56 NY2d 332 [1982]).

May 29, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Claimant’s Notice of Motion, filed March 21, 2007;
  2. Claimant’s unsworn Affidavit, dated March 14, 2007, and annexed exhibits;
  3. Affirmation of Saul Aronson, affirmed on March 30, 2007, with annexed exhibit;
  4. Claimant’s Answer to Opposition Motion to File Late, dated April 17, 2007, with annexed exhibits;
  5. Claim filed March 21, 2007;
  6. Answer filed April 3, 2007.