New York State Court of Claims

New York State Court of Claims

ALEXANDER v. THE STATE OF NEW YORK, #2009-010-043, Claim No. NONE, Motion No. M-77201


Late claim application granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 1, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on movants’ late claim application:
Notice of Motion, Supporting Affirmation and Exhibits.........................................1

Attorney’s Affirmation in Opposition.....................................................................2

Attorney’s Reply Affirmation..................................................................................3

Claim No. 117203 arises out of a motor vehicle accident which occurred on August 17, 2007. The claim alleges that defendant was negligent in, inter alia, constructing, designing, maintaining and controlling the traffic on Route 120 (Defendant’s Ex. B). A notice of intention was timely served on the Attorney General’s office on November 7, 2007 and the claim was timely filed with the Clerk of the Court on July 31, 2009. However, the claim was not timely served upon defendant within two years of its accrual; rather it was served on August 21, 2009. Accordingly, claimants failed to comply with the statutory mandates requiring both service and filing of the claim within two years of its accrual (Court of Claims Act § 10) and Claim No. 117203 was dismissed (M-77217).
Late Claim Application
Movants seek leave to serve and file a late claim based upon the facts alleged in the aforenoted claim (Proposed Claim, Claimant’s Ex. D).

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy.

The Court has considered the above six factors. Here, a notice of intention was timely served and a claim was timely filed; however service upon defendant was four days late. While movants have not presented a valid excuse for the delay (see Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854), the presence or absence of any one factor is not determinative (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979). Also, defendant has failed to show how the delay has caused defendant to be substantially prejudiced and deprived of the opportunity to timely investigate the circumstances underlying the claim (see Matter of Hughes v State of New York, 25 AD3d 800 [delay was minimal and did not prejudice defendant]).

The most significant factor to be considered is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Here, movants have established an appearance of merit. Notably, the papers submitted include an affidavit of a professional engineer who visited the site and reviewed the police accident report and the police photographs taken at the scene of the accident.[1]

Upon consideration of all the factors, the Court finds that movants have made a sufficient showing to warrant granting their application despite the possibility of another available remedy (see Matter of Smith v State of New York, 63 AD3d 1524). Accordingly, the application is GRANTED and movants shall, within 45 days of this filed-stamped Decision and Order, serve and file a claim in the same form and substance as the proposed claim, and in accordance with the Court of Claims Act. It is noted that the appearance of merit is limited to this Court’s ruling on the motion and that a heavier burden of proof rests upon movants to prevail at trial.

December 1, 2009
White Plains, New York

Judge of the Court of Claims

[1]. While defendant made many persuasive arguments attacking the weight to be accorded to the expert’s opinion, those arguments are more appropriate for cross-examination at trial.