New York State Court of Claims

New York State Court of Claims

ASSANAH v. THE STATE OF NEW YORK, #2009-033-333, Claim No. None, Motion No. M-75465


Synopsis



Case Information

UID:
2009-033-333
Claimant(s):
EON ASSANAH
1 1.The Court sua sponte amends the caption to reflect The State of New York as the only properly named Defendant.
Claimant short name:
ASSANAH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court sua sponte amends the caption to reflect The State of New York as the only properly named Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-75465
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Raphaelson Law Firm, P.C.By: Jason S. Krakower, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 25, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion brought by Eon Assanah (hereinafter "movant") due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on May 4, 2008, on the Southern State Parkway, in the Town of Islip, New York.

Movant seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)[2].

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; (5) whether the movant has another available remedy; and (6) whether the claim appears to be meritorious. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

The Court has reviewed the parties’ papers in support of and in opposition to the motion.

Based on the foregoing, the Court concludes that the statutory factors favor movant’s application and, therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD3d 527). Movant is directed to serve and file the proposed claim within forty-five (45) days of the filing date of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act.


March 25, 2009
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[2].The following papers have been read and considered on movant’s motion: Motion for Leave to File Late Claim For Damages dated August 25, 2008 and filed August 26, 2008; Affirmation in Support of Jason S. Krakower, Esq. with annexed Exhibits A-E dated August 25, 2008 and filed August 26, 2008; Affirmation in Opposition of Todd A. Schall, Esq. with annexed Exhibit A dated October 31, 2008 and filed November 3, 2008; Reply to Affirmation in Opposition of Jason S. Krakower, Esq. dated November 11, 2008 and filed November 12, 2008.