Claimants move for permission to file a late claim alleging that they had a
contract for snow removal and ice control services at the Letchworth Village
campus of the New York State Office of Mental Retardation and Developmental
Disabilities which was breached when defendant failed to pay their invoice for
work performed on January 14, 2008. The claim was filed July 10, 2008 but was
not served until November 25, 2008. In lieu of answering the claim, defendant
submitted a motion to dismiss for lack of jurisdiction based on claimants
failure to serve and file their claim in a timely manner. The motion was denied
(M-76039, Decision and Order dated March 18, 2009) because defendant did not
meet its burden of proof, based on the papers submitted on that motion, that the
claim was untimely. Specifically, the claim alleged that a notice of intention
was served on June 5, 2008 while defense counsel denied that a notice of
intention had been properly served.
Defendant’s answer, alleging that the court lacks jurisdiction because
claimants’ failed to serve the claim or the notice of intention on the
Attorney General was filed April 29, 2009.
A conference was held on June 5, 2009. At the conference, claimants conceded
that the notice of intention had been served directly on OMRDD, not on the
Attorney General as required by law. Claimants also maintained that the claim
accrued on April 15, 2008, when the contract ended and all balances were due.
Claimants were advised at the conference that service on OMRDD, rather than on
the Attorney General, did not comport with the requirements of the Court of
Claims Act and that such service was ineffectual to extend the time for proper
service and filing of the claim beyond six months from the claim’s accrual
on April 15, 2008, when claimants allege all balances were due (Court of Claims
Act section 10). The instant motion ensued.
Court of Claims Act section 10(6) grants the court the discretion to allow the
filing and service of a late claim after consideration of all relevant factors,
including whether claimants’ delay was excusable, whether defendant had
timely notice of and the opportunity to investigate the pertinent allegations,
whether defendant would suffer substantial prejudice should the motion be
granted, whether the proposed claim has the appearance of merit and whether
claimants have an alternate remedy.
Although the court agrees with defendant that the circumstances alleged by
claimants (that they were advised by an unidentified clerk that service on OMRDD
was sufficient) do not render their delay excusable, the court also finds that
the other statutory factors all weigh in favor of granting the
Initially, the court notes that while claimants did not append an additional
copy of their claim to the motion papers and label it “proposed
claim,” it is apparent that the “claim proposed to be filed”
is the claim that was filed on July 10, 2008 and served on the Attorney General
on November 25, 2008. Defendant’s hyper-technical contention that the
motion must be denied because claimants did not attach an additional copy of the
claim, labeled “proposed claim,” to their motion papers is
Claimants allege that they had a written contract with OMRDD for snow and ice
removal services at Letchworth Village, that there was a snow and ice storm on
January 14, 2008 with 2.4 inches accumulation and they incurred damages of
$3,300.00 as the result of their expenditures for personnel, equipment and
materials in clearing the ice and snow. They further allege that Karl G.
Koller, Business Officer at Letchworth Village, refused to pay because he
alleged that there was no need for them to plow.
In response to these allegations, defendant alleges that a general allegation
of negligence is insufficient to establish a meritorious cause of action (even
though the proposed claim sounds in breach of contract, not in negligence), that
claimants allege no facts “in their moving papers” (ignoring the
allegations contained in the verified claim), and that claimants have not
submitted a copy of the alleged contract.
“Facts stated in a motion for leave to file a late claim against the
State are deemed true for purposes of motion, when not denied or contradicted in
opposing affidavits” (Sessa v State of New York, 88 Misc 2d 454,
458, affd 63 AD2d 334, affd 47 NY2d 976; see also Cole v State
of New York, 64 AD2d 1023). Defendant has not submitted an affidavit from
anyone with knowledge of the relevant facts and circumstances, instead relying
solely on the affirmation of counsel who is without personal knowledge of these
events. Thus, claimants’ allegations with respect to the merits of the
claim and notice to the State stand unrefuted.
The court finds that defendant had timely notice of claimants’
allegations and the opportunity to investigate by virtue of the timely service
of the notice of intention on OMRDD within the statutory six month filing
period. There is no indication that defendant would suffer any prejudice
whatsoever, much less the substantial prejudice referenced in the statute,
should the motion is granted.
A proposed claim has the appearance of merit for late filing purposes if it is
not patently groundless, frivolous or legally defective and there is reason to
believe a cause of action may exist (Matter of Santana v New York State
Thruway Auth., 92 Misc 2d 1). Based on the unrefuted allegations of the
verified claim, claimants’ submission meets this standard. As the Second
Department has noted, where the delay was minimal and the State would suffer no
prejudice, the fact that there may be issues of fact as to the merits of the
claim is insufficient grounds for denial of a late filing application
(Jomarron v State of New York, 23 AD3d 527).
Finally, the court notes that claimants have no alternate remedy, as the Court
of Claims is the sole forum in which to bring a breach of contract claim against
the State of New York.
Accordingly, the motion is granted. Under these circumstances, there is no
need to require dismissal of the filed claim (which defendant does not request)
and initiation of a new claim, which would entail payment of a second filing
fee. Accordingly, claimants are directed to serve a copy of the claim upon the
Attorney General by certified mail, return receipt requested, within 40 days of
the filing date of this decision and order. Thereafter, defendant shall have 40
days in which to serve an answer. If no answer is filed, the answer filed on
April 29, 2009 shall stand.