In order to determine an application for permission to serve and file a late
claim, the Court must consider, “among other factors,” the six
factors set forth in §10(6) of the Court of Claims Act. The factors stated
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 serve upon the Attorney General a
claim or notice of intention to file a claim, and the failure to timely file the
claim with the Court of Claims; 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. The presence or absence of any particular factor is
not dispositive Bay Terrace Coop. Section IV v New York State
Employees’ Retirement Sys. Policemen’s & Firemen’s
Retirement Sys., 55 NY2d 979, 981 (1982).
Significantly, however, a copy of the proposed
, must accompany the motion, allowing the
Court to ascertain the nature and location of the claim, as well as the date of
Court of Claims Act §11-b; 22 NYCRR §206.6.
Additionally, the motion must be timely brought in order to allow that a late
claim be filed “. . . at any time before an action asserting a like claim
against a citizen of the state would be barred under the provisions of article
two of the civil practice law and rules . . . ” Court of Claims Act §
10(6). A motion is “made when a notice of motion . . . is served.”
Civil Practice Law and Rules §2211; see also Jenkins v State of
New York, 119 Misc 2d 144, 145 (Ct Cl 1983). Here, assuming that the claim
accrued on January 2, 2009 when claimant indicates he fell, and further assuming
that what is intended is a claim asserting negligence (although there is no
indication as to what defendant is alleged to have done), the applicable statute
of limitations is three (3) years from accrual [see Civil Practice Law
and Rules §214] and the motion is timely.
Mr. Jones indicates in his moving papers that on January 2, 2009 at Fishkill
Correctional Facility he fell down the steps and was injured. [See
Affidavit in Support of Motion for Permission to File a Late Claim, ¶2].
He writes that he was unable to timely file his claim because “of my
physical injuries, mental disorders, physical disabilities and waiting to be
seen by a specialist, physical therapy and have an MRI done . . .”
[Ibid. ¶ 3]. He suggests that the State will not be prejudiced
“because claimant still need[s] to be diagnosed and [treated] for his
injuries before filing the actual claim.” [Id.].
No copy of a proposed claim has been included with the motion, thus the motion
is denied on that ground alone.
Although copies of a handwritten document entitled “Inmates
Grievance” dated June 22, 2009 concerning his requests to see a specialist
for leg pain, an undated mental status report reflecting an evaluation of
claimant on April 7, 2009 addressed to the Division of Parole, and scattered
records concerning medical or psychiatric treatment dated July 20, 2008, April
16, 2009, March 17, 2009, October 16, 2008 and October 1, 2008, are attached to
the motion papers, it is unclear exactly what the nature of the claim is based
on these documents. Other than saying that he fell down some steps, he does not
describe how the State is somehow liable for his fall; or if the State is
otherwise liable for some other action or inaction. It is also unclear which,
if any, of the factors that the court must consider on a late claim application
are addressed therein. Indeed, as pointed out by the defendant it appears that
claimant is delaying moving forward because he is awaiting a diagnosis for his
claimed injury. [Affirmation by Barry Kaufman, Assistant Attorney General,
It is well settled that the appearance of merit is viewed as the most important
factor to consider in an application to serve and file a late claim, as it would
be an act of futility to permit service of a late claim when it is patently
defective or is subject to a complete defense. Given the failure to include a
proposed claim, or to otherwise describe the nature of the claim in the papers
that were submitted, there is no indication how the State could be held liable
to this claimant.
Accordingly, claimant's motion [M-77010] for permission to serve and file a
late claim is hereby in all respects denied.
. . .”