New York State Court of Claims

New York State Court of Claims

ADIRONDACK v. STATE OF NEW YORK, #2007-045-027, Claim No. None, Motion No. M-73945


Late claim motion granted. Police Report, prior claim filed by subrogor.

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:
Wenig & WenigBy: Alan Wenig, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 28, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 [2004]). 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 [1982]). 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 determinative.

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.

November 28, 2007
Hauppauge, New York

Judge of the Court of Claims