New York State Court of Claims

New York State Court of Claims

ARNOLD v. THE STATE OF NEW YORK, #2008-033-298, Claim No. 114420, Motion Nos. M-74394, CM-74554


Synopsis



Case Information

UID:
2008-033-298
Claimant(s):
GODFREY ARNOLD
Claimant short name:
ARNOLD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114420
Motion number(s):
M-74394
Cross-motion number(s):
CM-74554
Judge:
James J. Lack
Claimant’s attorney:
Kazmierczuk & McGrathBy: John P. McGrath, Esq.
Defendant’s attorney:
Mulholland, Minion & RoeBy: Ronald J. Morelli, Esq.
Third-party defendant’s attorney:

Signature date:
June 26, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for personal injuries to Godfrey Arnold (hereinafter “claimant”) as the result of defendant’s alleged negligence on August 1, 2007, on the Wantagh Bridge, Wantagh, New York. The claim was filed in the Clerk’s Office on October 29, 2007 and served upon the defendant on November 1, 2007.

Defendant moves this Court to dismiss the claim, stating it was not timely served and filed pursuant to Court of Claims Act §§ 10 and 11[1].


The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. It is well settled that if the filing is not timely then the claim is subject to dismissal (Greenspan Bros. v State of New York, 122 AD2d 249). Court of Claims Act §10(3) states that the claim or notice of intention shall be filed within 90 days of the date of accrual. If a notice of intention is served upon the Attorney General’s Office then claimant must serve and file his claim within 2 years of the date the claim accrued.

In the instant matter, the claim was not served upon the Attorney General’s Office until after the 90 days from the date of the accident had passed.

Therefore, the Court grants defendant’s request to dismiss the claim for claimant’s failure to timely serve and file the claim. Claim No. 114420 is hereby dismissed and the Clerk of the Court is directed to close the file.

The Court turns its attention to claimant’s application for permission to file a late claim pursuant to Court of Claims Act §10(6)[2].

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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 failure to serve or file a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; (5) whether the movant has another available remedy; and (6) whether the claim appears to be meritorious. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

The Court has reviewed the parties’ papers in support of and in opposition to the motion.

Based on the foregoing, the Court concludes that the statutory factors favor claimant’s application and, therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD3d 527). Claimant is directed to serve and file the proposed claim within forty-five (45) days of the filing date of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act.



June 26, 2008
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on defendant’s motion: Notice of Motion dated December 26, 2007 and filed January 4, 2008; Affirmation in Support of Ronald J. Morelli, Esq. with annexed Exhibits A-B dated December 26, 2007 and filed January 4, 2008.
[2].The following papers have been read and considered on claimant’s cross motion: Notice of Cross Motion to Serve a Late Claim dated February 19, 2008 and filed February 20, 2008; Affirmation in Support of Motion to Serve Late Claim of John P. McGrath, Esq. with annexed Exhibits A-B dated February 19, 2008 and filed February 20, 2008; Affirmation in Opposition of Ronald J. Morelli, Esq. dated February 27, 2008 and filed March 5, 2008.