New York State Court of Claims

New York State Court of Claims

GASCHEL v. THE STATE OF NEW YORK, #2008-015-110, Claim No. 115789, Motion No. M-75562


Motion for permission to file late claim nunc pro tunc was granted.

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:
Steven M. Melley, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kent Sprotbery, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 15, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim nunc pro tunc pursuant to Court of Claims Act § 10 (6). By Decision and Order filed February 22, 2008 the Court granted claimant's motion for permission to serve and file a late claim alleging proposed causes of action under Labor Law § § 240 (1) and 241 (6). Claimant was required to file and serve a claim within 30 days following the date on which the Decision and Order was filed.

A claim was filed on September 8, 2008 and served on September 10, 2008, almost six months after the time established by the Court for service and filing of the claim. Issue was joined by service of the defendant's answer on October 20, 2008. The answer raised as a fifth defense the claimant's failure to file and serve the claim within the time frame set forth in the Court's order granting the prior motion for late claim relief.

In opposition to the claimant's motion for leave to file and serve a late claim nunc pro tunc, the defendant correctly points out that the claimant failed to proffer an excuse for the almost six-month delay in commencing the action. In addition, the defendant argues that late claim relief is unnecessary as the claimant has alternative remedies available in the form of an action against other contractors in the Supreme Court and a Workers' Compensation claim.

It has been held an improvident exercise of discretion to deny an application to file a late claim nunc pro tunc where the claim was served but not filed in accordance with the time limitation set forth in the Court order granting late claim relief (Matter of Yackle v State of New York, 21 AD3d 1283 [2005]; Griffin v John Jay Coll., 266 AD2d 16 [1999]). In those circumstances, the defendant was unable to establish "substantial prejudice to the State" because the claim was timely served (Id.; cf. Roberts v City Univ. of N.Y., 41 AD3d 825 [2007] [once the applicable statute of limitations period expires the Court of Claims lacks authority to extend the time to file a late claim]; Crum & Foster Ins. Co. v State of New York, 25 AD3d 643 [2006] [late claim relief could not be granted after expiration of the statute of limitations]). Here, while no claim was served within the period specified in the Court's prior Decision and Order and the defendant correctly references claimant's counsel's complete failure to proffer an excuse for the delay, the defendant does not argue that it would be prejudiced should the Court grant the relief requested. Thus, notwithstanding claimant's counsel's dilatory conduct, in the absence of prejudice, denial of the motion would be inappropriate.

Based on the foregoing claimant's motion is granted to the extent that claim number 115789 is deemed timely filed and served pursuant to this Court's Decision and Order filed February 22, 2008. Defendant's Fifth defense asserted in its answer alleging the untimely service and filing of the claim is dismissed.

December 15, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated September 22, 2008;
  2. Affirmation of G. Joseph Gaschel dated September 22, 2008 with exhibits;
  3. Affirmation of Kent B. Sprotbery dated October 8, 2008.