New York State Court of Claims

New York State Court of Claims

Gibson v. STATE OF NEW YORK, #2009-018-025, Claim No. NONE, Motion No. M-76200


Synopsis


Late claim application denied. Movant has failed to provide a copy of the proposed claim, and his affidavit in support of this motion is so lacking in pertinent facts, it is impossible to determine exactly what Movant alleges the State did wrong that caused his personal injuries.

Case Information

UID:
2009-018-025
Claimant(s):
DONALD GIBSON
Claimant short name:
Gibson
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-76200
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
Donald Gibson, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Bonnie Gail Levy, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 13, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Movant brings a motion for permission to file a late claim. Defendant opposes the


motion.

Court of Claims Act § 10(6) permits a proposed claimant to bring a motion seeking permission to file a late claim against the State, within the time an action asserting a like claim against a citizen of the State would have to be brought under the provisions of article two of the CPLR. The application must include a proposed claim including all of the information required under § 11 of the Court of Claims Act. The Court, in determining whether an application for permission to file a late claim should be granted, must consider the six factors listed in Court of Claims Act § 10(6), and any other relevant factors. The presence or absence of any one factor is not determinative (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). Instead it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

Here, Movant has failed to provide a copy of the proposed claim, and his affidavit in support of this motion is so lacking in pertinent facts that it is impossible to determine exactly what Movant alleges the State did wrong that caused him personal injuries. The failure to attach a proposed claim alone can be grounds for denying the application (see Grant v State of New York, Ct Cl, Read, P. J., dated September 6, 2000, Claim No. None, Motion No. M-61919 [UID # 2000-001-049]; Larocco v State of New York, Ct Cl, dated May 24, 2004, Claim No. None, Motion No. M-68085 [UID #2004-009-33]). The Court cannot even determine whether the application is timely.

Given the absence of factual detail, the Court cannot engage in a meaningful review of the factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted, whether the proposed claim appears to be meritorious, or whether Movant has any other remedy.

Accordingly, Movant’s motion must therefore be DENIED without prejudice to bring a proper late claim application.



May 13, 2009
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


Papers Considered:
  1. Notice of Motion.
  2. Affidavit of Donald Gibson, in support, sworn to on January 20, 2009.
  3. Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in opposition, with exhibit attached thereto.