FRYE v. THE STATE OF NEW YORK, #2008-042-509, Claim No. NONE, Motion No.
This motion is brought before the court by claimant, individually and as parent
and natural guardian of an infant, for permission to file a late claim pursuant
to Court of Claims Act Section 10 (6). The court finds that claimant has failed
to sufficiently meet the statutory criteria for the late filing of a claim and
therefore denies claimant’s motion to file a late claim.
In the Matter of the Claims of MICHELE
Individually and as Parent and Natural Guardian
ofAMY LUCKETTE, an infant
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NORMAN I. SIEGEL
CHRISTINA CAGNINA, ESQ.
HON. ANDREW M. CUOMO
Attorney General of the State
of New York
By: JOEL L. MARMELSTEIN,
ESQ.Assistant Attorney General
May 2, 2008
See also (multicaptioned
This matter comes before the court on a motion by claimant, individually and as
parent and natural guardian of an infant, for permission to file a late claim,
pursuant to Court of Claims Act § 10 (6). The motion is opposed by the
state. The court has considered the following papers:
1. Notice of Motion, filed January 7, 2008
2. Affidavit of Christina Cagnina, Esq., sworn to October 24, 2007
3. Exhibits A - B, annexed to the moving papers
4. Opposition affirmation of Joel L. Marmelstein, Esq., dated February 25,
The relevant underlying facts, as set forth in the moving papers and proposed
claim are not in dispute. The “infant” Amy Luckette was born on
December 26, 1989. On June 20, 2007 while Amy Luckette was alone at her
residence, she was attacked by Ronald D. Messinger, a mentally handicapped
person under the care and supervision of Liberty Resources, Inc. It is alleged
that Amy Luckette sustained both physical injuries and emotional trauma in this
attack. Claimant alleges that Messinger’s care with Liberty Resources,
Inc. was contracted for by the New York State Office of Mental Retardation and
Developmental Disabilities (hereinafter referred to as
This motion, seeking permission to file a late claim, was not filed until
January 7, 2008 (though the attorney’s supporting affidavit was sworn to
on October 24, 2007 and the proposed claim was verified on October 9, 2007).
The named claimant is “Michele Frye, individually and as parent and
natural guardian of Amy Luckette, an infant”. Claimant Michele Frye
seeks to recover damages for the infant and recover personally under a
A review of the facts demonstrates that while Amy Luckette was an infant at the
time of the alleged incident on June 20, 2007 she was eighteen years of age at
the time of the filing of this motion. Nevertheless, as an infant at the time
of the incident she is accorded protection under the Court of Claims Act:
[p]ursuant to the Court of Claims Act, § 10 (5), a claim may be presented
against the State within two years after the infant attains majority, without
permission of the Court.
(Bucchan/Mitchell v State of New York, UID No. 2002-009-022, Claim No.
105241, Motion Nos. M-64553 and CM-64715, May 22, 2002, Midey, J.; Blatt v
State of New York, 19 Misc 2d 3; Russo v State of New York, UID No.
2007-009-031, Claim No. NONE, Motion Nos. M-72800 and M-73403, October 1, 2007,
As was noted by the court in Moore v State of New York, UID No.
2002-015-277, Claim No. NONE, Motion No. M-65101, August 2, 2002, Collins,
[i]t is well established that consistent with Article III § 19 of the New
York State Constitution and section 10 (5) of the Court of Claims Act a person
under a legal disability at the time of accrual of his or her tort claim may
present a claim “within two years after such disability is removed.”
It has thus been determined that in cases involving a disability such as infancy
permission to file a late claim on behalf of the infant is unnecessary provided
the filing is made no later than two years following the removal of the
disability (see, Boland v State of New York, 30 NY2d 337;
Leibowitz v State of New York, 82 Misc 2d 424; Weber v State of New
York, 267 AD 325).
Inasmuch as the presentation of a claim by Amy Luckette would still be timely,
this motion, as it applies to a claim on behalf of Amy Luckette, is denied as
However, the disability of infancy does not inure to the benefit of the mother,
and thus the motion for leave to file a late claim must be considered with
regard to the parent’s derivative claim (Blatt v State of New York,
19 Misc 2d 3, 4).
Court of Claims Act § 10 (6) provides, in relevant part, that:
[i]n determining whether to permit the [late] filing of a claim . . .,
the court shall 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.
The presence or absence of any one factor is not dispositive in the
court’s consideration of a late claim motion (see Bay Terrace Coop.
Section IV v New York State Employees’ Retirement System Policemen’s
& Firemen’s Retirement System, 55 NY2d 979; Rice v State of
New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, October
18, 2006, Sise, P.J.). Additionally, the court is afforded broad discretion in
its determination and consideration of the statutory factors. Matter of
Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York,
UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, March 10, 2004, Sise,
Claimant Michele Frye’s proffered excuse, as offered by her attorney, is
that claimant did not become aware that Liberty Resources, Inc. was a contractor
with the State of New York until receipt of a letter on September 18, 2007.
Counsel for claimant states that she did not review this letter until late in
the day on September 18, 2007 and was unable, on such short notice, to timely
file the claim. Nevertheless, this motion was not filed until almost four
months after counsel became aware of the alleged involvement of the
Under the circumstances, while the failure to timely file the claim might be
excusable, claimant’s delay of almost four months after learning of
defendant’s involvement is unexcused and unexplained.
NOTICE, OPPORTUNITY TO INVESTIGATE AND PREJUDICE
There is no evidence whatsoever that the defendant had any knowledge of the
incident or any opportunity to investigate the incident. In the absence of
notice and opportunity to timely investigate, the state is prejudiced under the
facts of the incident.
A consideration of these three factors does not favor the claimant.
This factor is often considered the most decisive, since “it would be a
futile gesture to permit a claimant to file a claim which is legally defective
and thus subject it to immediate dismissal” (Terrell v Green Haven
Correctional Facility, Ct Cl, June 14, 1977, Rossetti, J.; see Matter of
Santana v New York State Thruway Authority, 92 Misc 2d 1, 10).
The claimant seeks to hold the defendant State of New York liable for the
alleged negligent acts of the contractor. Specifically, the proposed claim
makes the following statements in this regard:
Defendants New York State and the NYS Office of Mental Retardation and
Developmental Disabilities contracted or associated with the Liberty Resources
for the care of said mentally challenged adult are responsible for the acts and
omissions of the other Defendants who were acting as their
This incident and Amy Luckette’s injuries were caused by the wrongful,
careless and negligent acts and omissions of New York State, the NYS Office of
Mental Retardation and Developmental Disabilities, and its agents, servants, or
employees, who, acting in the scope of their employment, knew or should have
known that the person in their care was violent and prone to acts of physical
aggression at the time; such acts and resulting injuries to Amy Luckette
therefore being foreseeable.
Defendant points out that the only affidavit submitted in support of the motion
is an affidavit by counsel, who would have no personal knowledge of the
incident. Counsel for defendant also asserts that the claim lacks any
specificity, as required by statute, with regard to the precise acts of
negligence on the part of defendant - that mere conclusory and general
allegations are inadequate. Furthermore, defendant argues that generally one
who retains an independent contractor is not liable for the negligent acts of
the independent contractor.
In the case at hand, the negligence is sufficiently stated for purposes of this
motion. While the attorney’s affidavit is made by one having no personal
knowledge of the incident, it is accompanied by the proposed claim, verified by
the claimant. Lastly, while defendant may be correct as to the general
principles of law with regard to independent contractors, there is insufficient
proof before the court for the court to draw any conclusions as to the exact
nature of the contractual relationship, if any, between Liberty Resources, Inc.
and the defendant.
While there may be questions as to the ultimate merit of this proposed claim,
such claim does appear, at this stage, to state a meritorious cause of action.
The court is mindful that “[a] movant need only establish that the
proposed claim is not patently groundless, frivolous or legally defective and
there is reasonable cause to believe that a valid cause of action exists”
(Papetti v State of New York, UID No. 2005-033-154, Claim No. NONE,
Motion No. M-70315, December 16, 2005, Lack, J.). Since, at the very least,
there is reasonable cause to believe that a meritorious claim exists, the court
finds that this factor favors the claimant.
As defendant argues, clearly claimant does have an alternative remedy: an
action directly against Liberty Resources, Inc.
This factor does not favor claimant.
Having weighed all of the statutory factors, the court finds that the claimant
has failed to sufficiently meet the statutory criteria for the late filing of a
claim (see Jerrett v State of New York, 166 AD2d 907). Claimant Michele
Frye’s motion for permission to serve and file a late claim is denied.
Accordingly, it is:
ORDERED that this motion is denied as unnecessary, with regard to the late
claim application submitted on behalf of Amy Luckette; and it is further
ORDERED that this motion is denied without prejudice insofar as this motion
seeks permission for the late service and filing of a derivative claim, or any
other individual claim, on behalf of Michele Frye.
May 2, 2008
HON. NORMAN I. SIEGEL
Judge of the Court of Claims
. There is in fact only one named defendant,
The State of New York.