New York State Court of Claims

New York State Court of Claims

SOLOMON v. THE STATE OF NEW YORK, #2008-009-034, Claim No. NONE, Motion No. M-75343


Claimant’s motion seeking permission to serve and file a late claim was denied.

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:
Attorney General
BY: Paul F. Cagino, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 18, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
“Motion for Permission to File a Late Claim”, with Proposed Claim 1,2

Affirmation in Opposition 3

Pursuant to § 10(6) of the Court of Claims Act, a claimant who fails to timely file his or her claim with the Clerk of the Court of Claims and/or fails to timely serve his or her claim upon the Attorney General, may make a motion seeking permission from the Court to serve and file a late claim. Pursuant to § 10(6), however, such an application must be brought at a 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.”

In this application, the Court has carefully reviewed the motion papers, including the proposed claim, submitted by claimant and must admit that it has difficulty in discerning any viable cause of action asserted therein. Notwithstanding this fact, claimant is quite clear that whatever relief he is seeking from this Court is based upon three separate incidents allegedly occurring on June 23, 1981, February 8, 1982, and February 11, 1993, apparently all based upon proceedings taking place in the various courts in Wayne County.

In any event, based upon those dates of accrual set forth by claimant, it is readily apparent to this Court that claimant has failed to make this application before the expiration of any possible statute of limitations. Furthermore, there is no indication that claimant is or was under any legal disability which would have provided for a tolling of the time within which claimant’s claim had to be served and filed (Court of Claims Act § 10[5]).

Accordingly, based upon the foregoing, claimant has failed to timely move for late claim relief. As a result, this Court does not have jurisdiction to consider this application for late claim relief, and the motion must therefore be denied on this basis.

Additionally, even though claimant failed to timely present this motion, this Court will nevertheless consider the merits of claimant’s application.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to excuse, claimant asserts that he is not a licensed lawyer in New York State, which the Court interprets to mean that claimant was not aware of the time requirements governing the service and filing requirements set forth in the Court of Claims Act. Ignorance of the law, however, does not provide an acceptable excuse for delay (Matter of E.K. v State of New York, 235 AD2d 540). The Court, therefore, finds that claimant has not provided an acceptable excuse for his failure to timely serve and file his claim.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. There is no indication whatsoever in the documents before the Court that the State had any notice of the essential facts constituting the claim, since the incidents on which the proposed claim is based apparently occurred in various courts located in Wayne County. Without any notice, the State certainly did not have an opportunity to investigate any of the circumstances underlying this claim. Furthermore, without any notice or opportunity to investigate, and based upon the length of time involved between the alleged incidents and this motion, it is readily apparent that the State would be substantially prejudiced should it have to defend this claim.

It certainly does not appear that claimant has any other apparent available remedies at this point in time.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

As previously indicated herein, this Court, after a careful review of the proposed claim, has been unable to discern any viable cause of action, and therefore finds that claimant has failed to assert a meritorious claim.

Therefore, even after a consideration of the merits of this motion, this Court, in its discretion, denies claimant’s application to serve and file a late claim.

Based on all of the foregoing reasons, it is

ORDERED, that Motion No. M-75343 is hereby DENIED.

December 18, 2008
Syracuse, New York

Judge of the Court of Claims