The following papers were read and considered by the Court on this motion:
Claimant’s Notice of Motion, Claimant’s Affirmation in Support with
annexed Exhibits A-H and Defendant’s Affirmation in Opposition. Claimant,
Classic Transportation, Inc., has brought this motion seeking an order granting
leave to file a late claim pursuant to General Municipal Law § 50-e(5).
Defendant, the State of New York, has opposed this application.
At the outset the Court notes that late claim relief in the Court of Claims is
only available pursuant to Court of Claims Act (CCA) § 10(6).
Claimant alleges in its proposed claim (Cl Exh H) that on November 30, 2006 at
approximately 7:50 p.m. its vehicle was parked on the State University of New
York (SUNY) Old Westbury campus. At that time a vehicle owned by defendant and
operated by an employee of defendant struck claimant’s vehicle causing
property damage to the vehicle in the amount of $8,326.11.
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
). In determining whether relief to file a late claim should be granted
the Court must take into consideration the factors set forth in Court of Claims
Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State
Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55
NY2d 979 ). The factors are not necessarily exhaustive, nor is the
presence or absence of any particular one controlling (id.). Those
factors are whether the delay in filing the claim was excusable; whether the
defendant had notice of the essential facts constituting the claim; whether the
defendant had an opportunity to investigate; whether the defendant was
substantially prejudiced; whether the claim appears to be meritorious and
whether the claimant has any other available remedy. A proposed claim to be
filed, containing all of the information set forth in CCA § 11, shall
accompany any late claim application.
Claimant does not offer any legally acceptable excuse for the delay in the
filing of his claim. However, lack of an acceptable excuse, alone, is not an
absolute bar to a late claim application (Matter of Carvalho v State of New
York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely
service is only one of several factors taken into consideration by the Court
when considering whether to allow late filing of a claim and is not by itself
The next three factors, notice, an opportunity to investigate and prejudice are
interrelated and as such will be considered together. Claimant states that on
December 28, 2006 it sent notice of its claim to SUNY together with a copy of
its claim file which included the police report and the witness statements. By
letter dated January 12, 2007, claimant was advised that Cool Risk Management
Services was the claims administrator for defendant. Claimant was further
advised that Cool Risk Management Services would investigate the claim and make
the appropriate recommendations to the Attorney General’s Office for
settlement. On February 5, 2007 claimant returned a completed claim form to Cool
Risk Management Services. On June 26, 2007, claimant was informed that its claim
was being denied due to claimant’s failure to file a claim in the Court of
Claims. Defendant does not deny that Cool Risk Management Services was the
appropriate claims administrator authorized to act on its behalf in this matter
or that SUNY received timely notice of the essential facts constituting the
claim. Thus, given the totality of the circumstances presented in this claim,
the Court finds that the balance of these factors weigh in claimant’s
Claimant has failed to present any arguments concerning the unavailability of
an alternative remedy. Thus, this factor must be found in defendant’s
The most significant issue to be considered is that of merit. To permit the
filing of a legally deficient claim would be an exercise in futility (Savino
v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order for a claim to “appear to be meritorious”: (1) it must not
be patently groundless, frivolous, or legally defective, and (2) 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. ...[T]he court need only determine whether to
allow the filing of the claim, leaving the actual merits of the case to be
decided in due course. While this standard clearly places a heavier burden on a
claimant who has filed late than upon one whose claim is timely, it does not,
and should not, require him to definitively establish the merits of his claim,
or overcome all legal objections thereto, before the court will permit him to
file (Matter of Santana v New York State Thruway Authority, 92
Misc 2d 1, 11 [Ct Cl 1977]).
The Court finds that claimant has established through its exhibits that, for
the purposes of this motion, its claim for property damage is meritorious.
Based upon the foregoing and having considered the statutory factors enumerated
in Court of Claims Act § 10(6), the Court finds that the factors favor
claimant’s application. Thus, the Court hereby grants claimant’s
motion to file a late claim.
Accordingly, within sixty (60) days of the date this decision and order is
filed, claimant shall file and serve the proposed claim, together with a payment
of the appropriate filing fee, pursuant to Court of Claims Act §
§ 11 and 11-a.