Claimant's application for late claim relief was granted.
|Claimant short name:||HAFNER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||LONGSTREET & BERRY, LLP
BY: Michael J. Longstreet, Esq.,
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Christopher Wiles, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 8, 2009|
|See also (multicaptioned case)|
Claimant has brought this motion seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation of Michael J. Longstreet, Esq., Affidavit of Paul Hafner, with Exhibits (including Proposed Claim at Exhibit B) 1,2,3
Correspondence dated August 20, 2009 from Christopher Wiles, Assistant Attorney General 4
In its claim, claimant seeks damages resulting from crop losses occurring when the State cut, or approved the cutting of, irrigation lines which ran under New York State Route 370 to its farmlands, on or about May 7, 2008. Claimant alleges that it did not have access to water for irrigation purposes between May 7, 2008 and June 15, 2008, resulting in severe crop losses due to the lack of irrigation.
Since the actions forming the basis of this claim allegedly occurred on or about May 7, 2008, and since this application was served on August 7, 2009, the motion is timely pursuant to § 10(6) of the Court of Claims Act.
In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Matter of Gavigan v State of New York, 176 AD2d 1117).
With regard to excuse, claimant's representative, Paul Hafner, states in his supporting affidavit (Item No. 3) that he had been in constant contact with State representatives regarding this problem from the date of discovery in May, 2008 through early December, 2008. Furthermore, Mr. Hafner states that he had been advised during this time that matters would be resolved, and that it would not be necessary for him to file a claim or retain an attorney.
It is well established that ignorance of this Court's filing requirements does not constitute a reasonable or legally acceptable excuse for the failure to timely serve and file a claim (Landry v State of New York, 1 AD2d 934, affd 2 NY2d 927; Modern Transfer Co. v State of New York, 37 AD2d 756). Furthermore, a "mere hope" of settlement or some communication between the State and claimant similarly does not constitute an acceptable excuse (Walach v State of New York, 91 Misc 2d 167, 176; see also Youngstown Pneumatic Concrete Co. v State of New York, 55 AD2d 776).
In this case, however (and accepting the statements of Mr. Hafner as true for purposes of this application), claimant was assured that a settlement would be reached and was actively discouraged from seeking legal advice or filing a claim. Accordingly, the Court finds that claimant has set forth an acceptable excuse for failing to timely serve and file its claim.
The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. In this particular matter, it is clear that Mr. Hafner placed the State on actual notice within one day after the irrigation line had been cut. The State therefore had adequate opportunity to investigate the circumstances involved in this action. As a result, the Court finds and concludes that the State would not be substantially prejudiced should it have to defend this claim.
The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).
Based on Mr. Hafner's affidavit, as well as the proposed claim, claimant has for purposes of this application sufficiently alleged damages resulting from the State's action in cutting, or approving the cutting of, the irrigation line. The Court therefore finds that claimant has made a sufficient showing as to the appearance of merit.
It does not appear that claimant has any other available remedy.
The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981) and none of the factors can require denial as a matter of law.
Accordingly, after a review of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act §10(6), it is the opinion of this Court that claimant should be allowed to serve and file its proposed claim.
Therefore, it is
ORDERED, that Motion No. M-77061 is hereby GRANTED; and claimant is directed to file and serve a properly verified and titled claim within 45 days from the date of filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.
December 8, 2009
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims