New York State Court of Claims

New York State Court of Claims

SANTARELLI v. THE STATE OF NEW YORK, #2009-033-360, Claim No. None, Motion No. M-76794


Synopsis



Case Information

UID:
2009-033-360
Claimant(s):
LINDA SANTARELLI, AS EXECUTRIX OF THE ESTATE OF SOLVEIG P. NELSON, DECEASED, AND LINDA SANTARELLI, INDIVIDUALLY
Claimant short name:
SANTARELLI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1.The Court sua sponte amends the caption to read The State of New York as the only properly named Defendant as the State of New York is the only proper defendant in the Court of Claims.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-76794
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Cellino & Barnes, P.C.By: William J. Loyd, 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:
December 8, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion brought by Linda Santarelli, as Executrix of the Estate of Solveig P. Nelson, deceased, and Linda Santarelli, individually (hereinafter "movant") due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on November 6, 2008, in Amityville, 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 serve and file a timely claim or timely serve a 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 of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act, and to take note of the Court’s amendment of the caption.


December 8, 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: Notice of Motion dated June 1, 2009 and filed June 10, 2009; Affirmation of William J. Loyd, Esq. with annexed Exhibits A-E dated June 2, 2009 and filed June 10, 2009; Affirmation in Opposition of Todd A. Schall, Esq. dated August 6, 2009 and filed August 10, 2009.