New York State Court of Claims

New York State Court of Claims

MC GUIRE v. THE STATE OF NEW YORK, #2008-010-043, Claim No. 115933, Motion Nos. M-75877, CM-75980


Defendant’s motion to dismiss is 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):
Terry Jane Ruderman
Claimant’s attorney:
ZECCOLA & SELINGER, LLCBy: Mark A. Schwab, Esq.
Defendant’s attorney:
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 23, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on defendant’s motion to dismiss and claimant’s cross-motion for leave to serve and file a late claim:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.......................1

Notice of Cross-Motion, Attorney’s Supporting Affirmation and in Opposition and Exhibits.....................................................................................................................2
On July 22, 2008, the New York State Thruway Authority (NYSTA) was served with a Notice of Claim naming the NYSTA as defendant and alleging that, on April 30, 2008, claimant was injured during the course of his employment on the Tappan Zee Bridge due to the negligence of the NYSTA. (Defendant’s Ex. A). The Notice of Claim was not served upon the Office of the Attorney General (OAG).

The OAG served an answer upon claimant’s attorney. Thereafter, claimant’s attorney represented that the Notice of Claim was intended to be a Notice of Intention and, on October 7, 2008, a claim naming the State of New York as the only defendant was served upon the OAG (Defendant’s Ex. B). The claim against the State of New York was filed on October 9, 2008.
Defendant’s Motion to Dismiss
Court of Claims Act §10(3) provides that a Notice of Intention must be served upon the OAG within 90 days after the accrual of the claim. Further, Court of Claims Act §11(a)(ii) provides that, in an action brought against the NYSTA, service of the Notice of Intention and/or the claim must be made upon the NYSTA “in addition to the attorney general.” Here, claimant never served the OAG with the purported Notice of Intention, captioned “Notice of Claim” and naming the NYSTA as a defendant. Therefore, claimant cannot avail itself of the time period set forth in Court of Claims Act §10(3) permitting a claim to be served within two years after the accrual of the claim. Thus, the claim served upon the OAG on October 7, 2008 was untimely and, therefore, warrants dismissal. Additionally, the claim did not name the NYSTA as a defendant. Rather, it named the State of New York as the only defendant. The NYSTA is an autonomous public corporation, separate and distinct from the State of New York, and must be named as a defendant and properly served in its own name (Public Authorities Law §§352, 354; see Bonaventure v New York State Thruway Auth., 108 AD2d 1002, 1003; Cantor v State of New York, 43 AD2d 872, 873). The State of New York is not a proper party defendant in this action. Thus, in addition to the untimeliness, the claim warrants dismissal against the State of New York because a cause of action alleging negligence of the NYSTA cannot be made against the State of New York.

Defendant’s motion to dismiss Claim No. 115933 is GRANTED.
Claimant’s Cross-Motion and Late Claim Application
The determination of whether to grant an application for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

The most significant factor is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). “A general allegation of negligence *** is insufficient to establish a meritorious cause of action” (Witko v State of New York, 212 AD2d 889, 891). Further, courts have upheld a denial of a late claim application where there was no showing of substantial prejudice, but the movant failed to make a sufficient factual showing of the appearance of merit of the claim (see City of New York v State of New York, 46 AD3d 1168).

Here, claimant has failed to address any of the relevant factors and has failed to submit any kind of supporting documentation such as an incident report, witnesses’ statements, a photograph, or medical records of his purported injuries and treatment (see Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413; [late claim denied when movant failed to adequately set forth facts demonstrating claim had appearance of merit]; Matter of Gallagher v State of New York, 236 AD2d 400; Klingler v State of New York, 213 AD2d 378 [claimants’ unsupported opinion does not suffice to establish merit of their claim]; Sevillia v State of New York, 91 AD2d 792).

Accordingly, on the papers submitted, claimant’s cross-motion for leave to serve and file a late claim application is DENIED without prejudice to his bringing such application upon proper papers within the appropriate statutory time period.

December 23, 2008
White Plains, New York

Judge of the Court of Claims