Claimant Barbara Taylor moves for an extension of time “to initiate the
claim process” or, in the alternative, for permission to file a late claim
pursuant to §10.6 of the Court of Claims Act (the “Act”), and
for the appointment of an attorney to represent
Ms. Taylor describes herself as an
“independent contractor” who was party to an approved and negotiated
“split-subcontract partnership agreement” entered into in connection
with the Governor’s Task Force on the Modernization of Elections. The
contract, she states, was executed in the spring of 2006 among herself, Carlos
Pareja of Brooklyn Community Access Television, and “Brooklyn
Residents.” See proposed claim, ¶2. Claimant asserts that she is
entitled, under the contract, to the sum of $120,000 for performing
“essential Technical Professional Consultant and Training Services”
¶2(a)), elsewhere described as “subcontracted
Liaison-Consultant and GIS [Geographical Info Survey] public works services
designed to refine the new Election and Voting processes.” See ¶5 of
the September 14, 2007 affidavit of Barbara Taylor.
Claimant is apparently alleging that the performance of her contract was made
difficult or impossible because portions of the project were postponed or
cancelled (see proposed claim, ¶2(d)) and because of
“continuous conflict, opposition and resistance by major television
industry professionals” to the pilot project (id., ¶ 2(e)).
The nature of the State’s alleged role in the events giving rise to the
claim is not clear. Claimant states that her claim accrued on December 31,
2006. No copy of the contract is annexed to claimant’s papers.
In order to determine claimant’s late claim motion, six factors
enumerated in §10.6 of the Act must be considered: whether (1) defendant
had notice of the essential facts constituting the claim; (2) defendant had an
opportunity to investigate the circumstances underlying the claim; (3) defendant
was substantially prejudiced; (4) claimant has any other available remedy; (5)
the delay was excusable and (6) the claim appears to be meritorious. The
factors are not necessarily exhaustive, nor is the presence or absence of any
particular factor controlling.
Claimant has failed to address any of these factors, other than to suggest that
the reason for her delay was the anticipated settlement of her claim. This is
not a valid excuse for the purposes of the act. See, e.g.,
State Farm Mutual Automobile Insurance Company a/s/o Quincy S. Thomson v
State of New York
, Ct Cl, June 19, 2006 (unreported, motion no. M-70977,
, Lack, J.).
The first three factors – whether defendant had notice of the essential
facts, had an opportunity to investigate or would be prejudiced by the granting
of this motion are intertwined and may be considered together. See Brewer v
State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998).
Defendant states that the Department of Labor has been unable to locate in its
records any information as to a contract involving claimant or any of the
individuals named in her papers, and claimant has not otherwise shown that these
three factors have been satisfied. With regard to an alternate remedy, to the
extent there was a valid contract, claimant might have causes of action against
entities other than the State.
The final factor to be considered is whether the proposed claim appears
meritorious. As set forth above, claimant has advanced no facts giving rise to
a cause of action against the State of New York. In view of the foregoing, I
cannot find that she meets the standard for merit set forth in Matter of
Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395,
402-03 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous,
or legally defective" and (ii) upon consideration of the entire record,
including the proposed claim and any exhibits or affidavits, "there is
reasonable cause to believe that a valid cause of action exists."
Finally, with respect to Ms. Taylor’s request to have an attorney
appointed to represent her, such is not generally available in civil cases. See
Matter of Smiley, 36 NY2d 433, 369 NYS2d 87 (1975).
In view of the foregoing, having reviewed the
, IT IS ORDERED that motion no.
M-73989 be denied.