New York State Court of Claims

New York State Court of Claims

MOSBY v. STATE OF NEW YORK, #2008-039-080, , Motion No. M-74520


Synopsis


Motion for permission to file a late claim is denied. Movant’s assertions that he is a laymen in the field of civil law, and that the denial of medical treatment, without more, and transfers to several facilities have affected his ability to pursue the matter are inadequate explanations for his delay in filing the claim. Additionally, movant’s application does not include a proposed claim, nor does his supporting affidavit, which is not notarized, contain any information regarding the nature of the claim

Case Information

UID:
2008-039-080
Claimant(s):
MALIK AZ’RAEL MOSBY
Claimant short name:
MOSBY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK1 1.The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-74520
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Malik Az’rael Mosby, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Belinda A. WagnerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 16, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

During October 2007, Malik Az’Rael Mosby (hereinafter movant) served a notice of intention upon the Attorney General. Movant now seeks an order from this Court granting him permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motion.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). When deciding whether to grant an application to file a late claim, the court is required to consider

“among other factors, 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 an 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 to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy” (Court of Claims Act § 10 [6]).

“No single factor is deemed controlling, as the presence or absence of any one factor is not determinative” (Matter of Beckford v State of New York, 264 AD2d 841 [1999]; see also Bay Terrace Coop. Section IV v New York State Employees Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). “One of the factors to be considered is whether the claim has the appearance of merit, as it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the claimant’s motion” (Savino v State of New York, 199 AD2d 254, 254-255 [1993]). “In order for a claim to ‘appear to be meritorious’ . . . it must not be patently groundless, frivolous, or legally defective, and . . . the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists” (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [1977]).

Here, movant asserts that he is a “laymen [sic] in the field of civil law,” that the denial of medical treatment has affected his ability to pursue this matter, and that he has “been transient through several facilities.” “To be sure, ignorance of the law is not an acceptable explanation for the failure to serve a timely notice of claim” (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [2002], lv dismissed 99 NY2d 589 [2003]). “Similarly, conclusory allegations that one is incarcerated and without access to legal references have also been rejected as a reasonable explanation” (Matter of Sandlin v State of New York, supra at 724). Moreover, movant does not offer any proof in support of his assertion that he suffers from a medical condition, the lack of care for which has hindered his efforts to pursue a claim. Thus, movant has failed to set forth an adequate explanation for his delay in filing the claim.

Additionally, movant’s application does not include a proposed claim, nor does his supporting affidavit contain any information regarding the nature of the claim. Notably, movant’s affidavit is not notarized. The absence of a proposed claim (see Pino v State of New York, Ct Cl, February 27, 2006, UID #2006-015-073, Motion No. M-71048, Collins, J.; Larocco v State of New York, Ct Cl, May 24, 2004, UID #2004-009-33, Motion No. M-68085, Midey, J.; Grant v State of New York, Ct Cl, September 6, 2000, UID #2000-001-049, Motion No. M-61919, Read, P.J.), considered together with the complete lack of information in movant’s supporting affidavit from which to determine “whether the claim has the appearance of merit” (Savino v State of New York, supra at 254-255; see also Court of Claims Act § 10 [6]), necessitates the denial of his motion for leave to serve and file a late claim.

Accordingly, it is hereby ordered that Motion No. M-74520 is denied.


May 16, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion dated February 6, 2008;
  2. “Affidavit” in Support of Motion to File Late Claim by Malik Az’Rael Mosby dated February 6, 2008; and
  3. Affidavit in Opposition by Dennis Acton, AAG sworn to on February 15, 2008.