New York State Court of Claims

New York State Court of Claims

METROPOLITAN v. STATE OF NEW YORK, #2008-037-028, Claim No. NONE, Motion No. M-75072


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:
Allen D. Werter, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Michael C. RizzoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 16, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Movant’s motion to late file a claim:
  1. Notice of motion and affirmation of Allen D. Werter, Esq. dated June 5, 2008, with
annexed Exhibits;

  1. Opposing affidavit of Assistant Attorney General Michael C. Rizzo sworn to June
18, 2008.

Movant, Metropolitan Property & Casualty Insurance Company a/s/o Charles and Linda Tucker (Metropolitan Property & Casualty), brings this motion for permission to late file a “notice of claim.”[1] According to the proposed claim annexed to Movant’s motion papers, on December 20, 2007, a New York State Police vehicle negligently and carelessly collided with Movant’s subrogor’s vehicle (the Tucker vehicle) causing property damage.

Pursuant to Court of Claims Act § 10 (3), a negligence claim against the State of New York must be filed and served upon the Attorney General within 90 days of accrual unless the Claimant serves upon the Attorney General within this same 90-day period a notice of intention to file a claim, in which event the claim must be filed and served within two years of accrual of the claim. No extension of the 90-day period is applicable as no notice of intention was apparently served. It was thus incumbent upon Movant to serve and file its claim within 90 days of December 20, 2007, which Movant failed to do. At this juncture, the sole relief available to Movant is to seek permission to late file a claim pursuant to Court of Claims Act § 10 (6).

Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of all relevant factors, including: whether the delay in filing the claim was excusable; whether the State had notice of the essential facts constituting the claim; whether the State had the opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the Attorney General a timely claim or serve a timely notice of intention to file a claim resulted in substantial prejudice to the State; and whether the Movant has any other available remedies. The list is not exhaustive and the presence or absence of any one factor is not dispositive. The Court is afforded broad discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

Movant’s application does not properly address these statutory factors. In fact, while Movant attempts to excuse its delay in filing and serving a claim and argues that the State will not be prejudiced if late claim relief is granted, such arguments are unavailing. As Defendant correctly notes, ignorance of the Court of Claims Act is not a justifiable excuse for late filing a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]). And while the State may not be unduly prejudiced if late claim relief is granted, Movant fails to even allege that the State had notice of the essential facts and the opportunity to investigate, fails to state whether other remedies are available, and most importantly, fails to even argue that the proposed claim has merit. A claim appears to be meritorious if it is not patently groundless, frivolous or legally defective and a review of the entire record indicates that there is reason to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]).

Here, the proposed claim merely alleges that the Defendant was negligent and careless. Attached to Movant’s motion papers, however, is a copy of the Police Accident Report (MV-104A). According to this report, a police vehicle with its wig wag emergency lights activated made a U-turn (to pursue a speeding vehicle) in front of the Tucker vehicle. Defendant argues that its Trooper was engaged in an emergency operation at the time of the accident and that pursuant to § 1104 of the Vehicle and Traffic Law, Movant must establish that the Trooper’s actions were not merely negligent, but were reckless. Section 1104 of the Vehicle and Traffic Law provides that the operator of an emergency vehicle involved in an emergency operation may exercise certain exemptions from traffic laws, but that these privileges will not protect the driver “from the consequences of his reckless disregard for the safety of others.” (see § 1104 [e]). Nothing in Movant’s proposed claim provides any indicia or allegation that the Trooper acted with reckless disregard. As a result, Movant has failed to demonstrate even the appearance of merit (see Nationwide v New York State Thruway Authority, Ct Cl, September 23, 2002, Minarik, J., Claim No. None, Motion No. M-65187, UID # 2002-031-046).[2]

Accordingly, the Court declines to exercise its discretion to allow the proposed claim to be filed late and it is hereby

ORDERED, that Movant’s motion no. M-75072 is denied, without prejudice.

July 16, 2008
Buffalo, New York

Judge of the Court of Claims

[1]. An action in the Court of Claims is commenced by the filing and service of a claim, not a notice of claim.
[2]. This and other unreported Court of Claims decisions may be found on the Court’s website at