The following papers were read and considered by the Court on this motion:
Claimant’s Notice of Motion, Attorney Affidavit in Support with annexed
Exhibits A-D, Defendant’s Affirmation in Opposition and Claimant’s
Reply Affidavit with annexed Exhibit A.
Claimant, Adirondack Insurance Exchange as subrogee of Linda Ogeka, has brought
this motion seeking an order granting leave to file a late claim pursuant to
Court of Claims Act (CCA) § 10(6). Defendant, the State of New York, has
opposed claimant’s motion.
In the present application, claimant alleges that on January 24, 2007, a car
driven by defendant’s agent crossed a double yellow line separating
traffic and crashed into its insured’s vehicle causing property damage.
Claimant alleges, inter alia, that defendant was careless, reckless and
negligent in the operation and control of its vehicle.
It is well settled that “[t]he Court of Claims is vested with broad
discretion to grant or deny an application for permission to file a late
claim” (Matter of Brown v State of New York, 6 AD3d 756, 757
). In determining whether relief to file a late claim should be granted
the Court must take into consideration the factors set forth in Court of Claims
Act § 10(6) (Bay Terrace Cooperative Section IV, Inc. v New York State
Employees' Retirement System Policemen's and Firemen's Retirement System, 55
NY2d 979 ). The factors are not necessarily exhaustive, nor is the
presence or absence of any particular one controlling (id.). Those
factors are whether the delay in filing the claim was excusable; whether the
defendant had notice of the essential facts constituting the claim; whether the
defendant had an opportunity to investigate; whether the defendant was
substantially prejudiced; whether the claim appears to be meritorious and
whether the claimant has any other available remedy. A proposed claim to be
filed, containing all of the information set forth in CCA § 11, shall
accompany any late claim application.
Claimant does not offer any legally acceptable excuse for the delay in the
filing of his claim. However, lack of an acceptable excuse, alone, is not an
absolute bar to a late claim application (Matter of Carvalho v State of New
York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely
service is only one of several factors taken into consideration by the Court
when considering whether to allow late filing of a claim and is not by itself
The next three factors, notice, an opportunity to investigate and prejudice,
are interrelated and as such will be considered together. Initially, claimant
points out that the subrogor in this matter timely filed a claim against
defendant for her personal injuries sustained in connection with the underlying
accident. Claimant continues that it sent three letters together with a notice
of intention to defendant’s third-party administrator, Cool Risk
Management, within 90 days of the date of the accident. Finally, claimant states
that a police accident report was filled out at the scene and that an
investigation was undertaken by defendant resulting in a witness statement given
to defendant on February 10, 2007. The Court finds that the previously filed
subrogor’s claim coupled with the police report and defendant’s
subsequent investigation of the accident provided defendant with knowledge of
the essential facts giving rise to the claim as well as an opportunity to
investigate the incident (Jordan v City of New York, 41 AD3d 658 [2d Dept
2007]; Wolf v State of New York, 140 AD2d 692 [2d Dept 1988]). Thus,
after considering all the circumstances, the Court finds that these factors
weigh in claimant’s favor.
The most significant issue to be considered is that of merit. To permit the
filing of a legally deficient claim would be an exercise in futility (Savino
v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order for a claim to “appear to be meritorious”: (1) it must not
be patently groundless, frivolous, or legally defective, and (2) the court must
find, upon a consideration of the entire record, including the proposed claim
and any affidavits or exhibits, that there is reasonable cause to believe that a
valid cause of action exists. ...[T]he court need only determine whether to
allow the filing of the claim, leaving the actual merits of the case to be
decided in due course. While this standard clearly places a heavier burden on a
claimant who has filed late than upon one whose claim is timely, it does not,
and should not, require him to definitively establish the merits of his claim,
or overcome all legal objections thereto, before the court will permit him to
file (Matter of Santana v New York State Thruway Authority, 92
Misc 2d 1, 11 [Ct Cl 1977]).
The Court finds that claimant has established through its exhibits that, for
the purposes of this motion, its claim for property damage is meritorious.
Finally, claimant sets forth and defendant does not contradict, that there is
no other available remedy for the claimant.
The Court must also address defendant’s assertion that the proposed claim
does not comply with §11 of the Court of Claims Act. In its reply papers,
claimant asserts that the proposed claim adequately describes the particulars of
the claim. The court notes that its review of the proposed claim reveals that
the time the accident occurred is absent from the claim. As Court of Claims Act
§11(b) lists time when the claim arose as a factor, there is merit to
defendant’s argument. However, claimant can cure this oversight by
incorporating a copy of the police report into the proposed claim by attaching
it to the proposed claim when it is filed.
Based upon the foregoing and having considered the statutory factors
enumerated in Court of Claims Act §10(6), the Court finds that
claimant’s motion to file a late claim is granted.
Accordingly, within sixty (60) days of the date this decision and order is
filed, claimant shall file and serve the proposed claim as amended, together
with a payment of the appropriate filing fee, pursuant to Court of Claims Act
§§ 11 and 11-a.