New York State Court of Claims

New York State Court of Claims

TSIORVAS v. THE STATE OF NEW YORK, #2008-045-030, Claim No. None, Motion No. M-74727


Late claim motion granted.

Case Information

In the matter of the claim of GUS TSIORVAS
1 1.The caption has been amended, sua aponte, to reflect the State of New York as the properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended, sua aponte, to reflect the State of New York as the properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
The Gucciardo Law FirmBy: Thomas P. Ram, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 1, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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-G, Defendant’s Affirmation in Opposition with annexed Exhibit A and Claimant’s Reply Affirmation. Claimant, Gus Tsiorvas, has brought this motion seeking an order granting leave to file a late claim pursuant to Court of Claims Act (CCA) § 10(6). Defendant, the State of New York, has opposed this application.

Claimant alleges in his proposed claim (Cl Exh A) that on August 13, 2007 at approximately 4:15 p.m. he was driving his motor vehicle eastbound on the Southern State Parkway, Heckscher Spur, approximately .2 miles west of Exit 43 near reference marker 1123. At that time, claimant alleges that he lost control of his vehicle due to a defective condition in the roadway. Claimant describes the defective condition as a “wide and deep road opening” created by defendant and measuring approximately 16 inches by 16 inches. Claimant has attached a photo of the road opening to his claim. Claimant has further attached to his claim a copy of the police accident report which indicates the location of the accident by reference point as well as by longitudinal and latitudinal coordinates. The police report describes the accident as having occurred when claimant lost control of his vehicle which caused his vehicle to strike another motor vehicle traveling on the parkway. Claimant’s vehicle then overturned and claimant was ejected from his vehicle. Claimant alleges that defendant either created the defect in the roadway or had constructive notice of the defect and failed to remedy the condition. As a result of the accident claimant suffered, inter alia, a fractured right tibia which required surgery.

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]). 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 [1982]). 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 determinative.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Claimant states that on October 18, 2007 a verified notice of intention to make a claim was served upon the New York State Office of Parks, Recreation and Historical Preservation. On November 8, 2007 claimant served an unverified claim upon the Attorney General’s Office. On that date claimant also filed the unverified claim in the Chief Clerk’s Office of the Court of Claims. The claim was then assigned claim number 114465 by the Clerk’s Office. To date, defendant has failed to bring a motion seeking dismissal of the claim numbered 114465. In response to the original unverified claim, defendant served an answer and discovery demands upon claimant. Thereafter, claimant mailed a verified bill of particulars to defendant on March 12, 2008. Although the original unverified claim may have been legally insufficient to initiate an action, it was detailed enough to put defendant on notice of the underlying claim. Additionally, since the discovery process was timely begun in this matter under claim 114465, defendant has had an opportunity to investigate the claim and cannot plausibly argue that it is prejudiced by the current application. Thus, after weighing all the circumstances involved in the present action, these factors are found to be in claimant’s favor.

It appears as though claimant may have an alternate remedy against a private entity. Thus, this factor must be found in defendant’s favor.

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 Auth., 92 Misc 2d 1, 11, 12 [Ct Cl 1977]).

The Court finds that claimant has established, for the purposes of this motion, that his claim 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.

July 1, 2008
Hauppauge, New York

Judge of the Court of Claims