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, B, C, D and E, Defendant’s Affirmation in Opposition
and Claimant’s Affirmation in Reply. Claimant, Maria Locascio, has brought
this motion seeking an order granting leave to file a late
pursuant to Court of Claims Act (CCA)
§ 10(6). Defendant, the State of New York, has opposed this application.
Claimant alleges in the proposed claim (Cl Exh E) that on March 8, 2008 at
approximately 11:35 p.m. she was the owner and operator of a motor vehicle
traveling on Hempstead Turnpike. At that time her vehicle came into contact
with another motor vehicle traveling northbound on Meachum Avenue at the
intersection of Hempstead Turnpike and Meachum Avenue. Claimant alleges that the
accident was caused by a defective traffic control device at that location.
Claimant contends, inter alia, that the traffic control device was owned
and negligently maintained by defendant. Claimant has also submitted a copy of
the police accident report with the motion. The police report refers to a
defective traffic signal at the location of the accident.
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. Aside from broad
generalizations, defendant has not specifically identified how it has been
prejudiced by the two-week delay in the filing and serving of the claim. 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 in Supreme Court. 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 Auth., 92 Misc 2d
1, 11, 12 [Ct Cl 1977]).
The Court finds that claimant has established, for the purposes of this motion,
that the 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.