New York State Court of Claims

New York State Court of Claims

ALESTRA v. STATE OF NEW YORK, #2008-040-068, Claim No. NONE, Motion No. M-75443


Synopsis


Court of Claims Act § 10(6) Motion to Late File a Claim – granted.

Case Information

UID:
2008-040-068
Claimant(s):
VIRGINIA ALESTRA
1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
ALESTRA
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-75443
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
THOMAS J. STOCK & ASSOCIATESBy: Thomas J. Stock, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Glenn C. King, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 14, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the application of Movant, Virginia Alestra, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted.

The proposed claim asserts that Movant was injured on December 1, 2007, at approximately 2:30 p.m., when she was walking from a dormitory on the campus of the State University of New York at New Paltz (hereinafter SUNY New Paltz) to parking lot #28 and stepped into a hole “near a telephone pole and the south-west sidewalk on South Manheim Blvd. in the Village of New Paltz” (Proposed Claim, ¶ 3). It is alleged that the State was negligent in the maintenance of the area. It should be noted that South Manheim Boulevard is State Route 32.

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the Proposed Claim appears to assert causes of action for negligence (CPLR § 214[5]), a three-year Statute of Limitations applies and the motion is properly before the Court.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The Court finds Movant’s proffered excuse for the delay in timely filing and serving the claim – her ignorance of the Court’s filing requirements – is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A] [Ct Cl 2006]). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. Defense counsel asserts that Defendant will be prejudiced if the Court allows the late filing of the claim because Defendant “did not have a reasonable opportunity to conduct an investigation of the circumstances surrounding movant’s fall” (Affirmation in Opposition, ¶ 4). Counsel asserts that Movant did not report the incident to the SUNY New Paltz Police until 18 days after the incident (see Alestra Affidavit attached to Motion, ¶ 5). Defense counsel asserts a lack of notice or lack of opportunity to investigate (Affirmation in Opposition, ¶ 4). The State cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023, 1024 ). At best, the above statement can be considered as an argument that the State will be substantially prejudiced by the delay in filing. However, counsel has submitted only his own conclusory affirmation in this regard. There is no statement from a potential witness stating that the witness does not remember this event. Thus, the Court concludes these factors weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. In this case, it appears Movant does not have any alternate remedy.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).

At this stage of the proceedings, it should be noted the Court generally takes as true factual allegations of a movant. Based upon the entire record, the Court finds that the proposed claim has the appearance of merit. Movant need only establish the appearance of merit; she need not prove a prima facie case at this stage of the proceedings.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor. The mix of circumstances presented by this case falls well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L. 1976, Ch. 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, supra). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant her leave to file a late claim against the State. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the Clerk of the Court her proposed claim against the State, and serve a copy of the proposed claim upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims. Movant is advised that individual departments or agencies of New York State such as SUNY New Paltz and the New York State Department of Public Works[2] cannot be sued in their own names. The proper Defendant is the State of New York and the caption in the Claim that is filed and served should be amended accordingly.



October 14, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read on Movant’s application for permission to file a late claim:
Papers Numbered


Notice of Motion, Affirmation
& Exhibits attached 1

Affirmation in Opposition 2


[2].Defense counsel asserts in his Affirmation in Opposition that New York State does not have any such department (Affirmation in Opposition, ¶ 6).