Movant brings a motion seeking permission to file a late notice of intention
to file a
claim pursuant to Court of Claims Act § 10(6). Court of Claims Act §
10(6), however, only authorizes this Court to grant permission to file a late
claim, and the Court will consider Movant’s application as seeking
permission to file a claim (Court of Claims Act § 10). The Court will
also treat the “Notice of Intention To file A Claim” as the proposed
claim for purposes of the motion. The motion is timely brought (Court of
Claims Act § 10; CPLR 214 and EPTL § 5-4.1). Defendant opposes
Movant is the Administrator of the Estate of Kenneth Cooper who was injured as
a passenger in a van owned by the New York State Office of Mental Retardation
and Developmental Disabilities (hereinafter Office). The driver of the van was
an employee of the Office. The accident occurred on February 21, 2008, when
the van, traveling north on Route 21 in the Town of Palmyra, County of Wayne,
struck a guardrail on the east side of the roadway, crossed over Goldsmith Road,
entered a ditch on the east side of Route 21 and struck an earth embankment.
The van became airborne and landed on its roof, coming to rest facing in a
southerly direction. Kenneth Cooper died the next day from the injuries he
sustained in the accident.
Court of Claims Act § 10(6) requires that the Court, in deciding an
application for permission to file a late claim, give consideration to six
factors: (1) whether there is a reasonable excuse for the delay in filing the
claim; (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 notice of
intention resulted in substantial prejudice to the State; (6) whether there is
any other available remedy and any other relevant factors. There is no one
factor that is determinative, rather it is a balancing of all of the factors
that may warrant granting the application (Bay Terrace Cooperative Section
IV, Inc., v New York State Employees’ Retirement System, Policemen’s
and Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New
York, 207 AD2d 965).
The first factor is whether the delay in filing the claim is excusable.
Movant’s counsel asserts that the decedent died on February 22, 2008, and
a decree appointing Moses Cooper as Administrator was filed on May 14, 2008. A
notice of intention to file a claim was served upon the Assistant Attorney
General on July 2, 2008. Although timely for the wrongful death cause of
action, no timely notice of intention was served for purposes of the personal
injury cause of action (Court of Claims Act § 10, § 10). It
appears that the excuse is that Decedent’s family had the understanding
that an administrator was necessary before a notice of intention could be served
and they were proceeding to obtain Letters of Administration in
Surrogate’s Court. However, because serving a notice of intention does
not commence the action, legal authority to commence a lawsuit is not necessary
to serve the notice of intention (Matter of Johnson v State of New York,
49 AD2d 136; Horeth v State of New York, 15 Misc 3d 1129[A]).
Accordingly, no valid excuse has been set forth (see Matter of Galvin
v State of New York, 176 AD2d 1185, lv denied 79 NY2d 753).
The factors of whether the State had notice of the essential facts, an
opportunity to investigate the underlying claim, and whether the State will
suffer substantial prejudice if the late filing and serving of the claim are
permitted will all be addressed together. Defendant acknowledges notice and an
opportunity to investigate this incident. As a result, no prejudice is alleged
or likely to be incurred if this application is granted.
The next factor, whether the claim appears to be meritorious, is often referred
to as the most essential factor. A proposed claim meets this standard if it is
not patently groundless, frivolous or legally defective, and upon consideration
of the entire record, there is cause to believe that a valid cause of action
exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d
1,11). Unlike a party who has timely filed a claim, one seeking permission to
file a late claim has the heavier burden of demonstrating that the proposed
claim appears to be meritorious (see Nyberg v State of New York, 154 Misc
Movant alleges that the State and driver of the van were negligent and/or
reckless as a result of the one vehicle accident. There is no indication why
the van struck the guardrail. Although the allegations of negligence could be
better described, given the circumstances of this accident, the proposed claim
meets the minimum standards.
The final factor is whether the Movant has any other available remedy. Movant
does not have another remedy.
Accordingly, upon balancing all of the factors in Court of Claims Act §
10(6), this Court GRANTS the movant’s motion to permit the late filing and
serving of the proposed claim.
thirty (30) days from the date this Decision and Order is filed with the Clerk
of the Court to properly serve and file the proposed claim and pay the required
filing fee in accordance with Court of Claims Act §§11 and 11-a.