New York State Court of Claims

New York State Court of Claims

GALERIE v. THE STATE OF NEW YORK, #2009-040-041, Claim No. NONE, Motion No. M-76198


Motion to file a late claim pursuant to Court of Claims Act § 10(6) denied without prejudice as proposed claim is jurisdictionally defective.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Law Office of Paul Pelagalli, PLLCBy: Paul Pelagalli, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 11, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, the application of Movants, Patricia R. Galerie and Francis E. Galerie, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied without prejudice.

Movants’ motion is labeled as one to serve and file a late Notice of Intention to File a Claim. Court of Claims Act § 10(6) provides only for the late filing of a Claim not a Notice of Intention to File a Claim (Holmes v State of N.Y., Roswell Park Cancer Inst. Corp., 5 Misc 3d 446 [Ct Cl 2004]; DeHart v State of New York, 92 Misc 2d 631 [Ct Cl 1977]). The Court will consider the application to be a motion for permission to serve and file a Claim late. The proposed Claim[1] asserts that, on October 14, 2008 at approximately 1:15 p.m., Ms. Galerie[2] was injured when the vehicle she was driving was struck by a vehicle “being pursued by several police cruisers, including New York State Police cruisers” (Proposed “Claim”, ¶ 3). It is further asserted that the State Police vehicles “were being operated in a reckless manner” (id.).

Court of Claims Act § 10(6) contains two preliminary requirements that must be satisfied in order for the Court to review the six enumerated factors set forth in the statute. The first is that the underlying Civil Practice Law and Rules (CPLR) statute of limitations for asserting a like claim against a citizen of New York State has not yet expired. Here, the Movants have asserted that the Claim accrued on October 14, 2008. Thus, it appears that the underlying statute of limitations for negligence has not yet expired (CPLR 214[5]).

The second requirement is that “[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application” (Court of Claims Act § 10[6]). The failure to satisfy this prerequisite is a basis, in and of itself, for denial of the motion (Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; Snider v State of New York, Ct Cl, Claim No. None, Motion No. M-75720, dated January 15, 2009, McCarthy, J. [UID No. 2009-040-003]; Nestel v State of New York, Ct Cl, Claim No. None, Motion No. M-71607, filed May 31, 2006, Mignano, J.; Harrell v State of New York, Ct Cl, Claim No. None, Motion No. M-66235, dated April 3, 2003, Corbett, J. [UID No. 2003-005-511]).

Court of Claims Act § 11(b) provides that the Claim “shall state the time when and place where the claim arose, the nature of same, the items of damage or injuries claimed to have been sustained ...”. Here, Movants assert the time when the proposed Claim arose, the nature of the proposed Claim and the injuries sustained by Ms. Galerie. However, there is no mention in the proposed Claim as to where this accident took place. “The requirements in section 11 (b) are ‘substantive conditions upon the State’s waiver of sovereign immunity’ (Lepkowski v State of New York, 1 NY3d 201, 207), and noncompliance renders a claim ‘jurisdictionally defective for nonconformity’ (id. at 209; see Kolnacki v State of New York, 8 NY3d 277, 281 [2007], rearg denied 8 NY3d 994 [2007]). Furthermore, ‘a lack of prejudice to the State is an immaterial factor’ (Byrne v State of New York, 104 AD2d 782, 784 [1984], lv denied 64 NY2d 607 [1985])” (Wilson v State of New York, ___ AD3d ___ [4th Dept 2009]). Here, the proposed Claim is jurisdictionally defective as it fails to assert the place where the accident occurred, “thereby failing to ‘state the ... place where such claim arose’ ” (citations omitted) (id.). The fact the place of the accident is stated in both Movants’ counsel’s affidavit (see ¶ 6) and Ms. Galerie’s affidavit (see ¶ 1) is insufficient to meet the requirements of Court of Claims Act § 10(6). On this basis, the Motion for Permission to File a Late Claim is denied, without prejudice.

May 11, 2009
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Movants’ motion to file a late claim pursuant to § 10(6) of the Court of Claims Act:

Papers Numbered

Notice of Motion, Attorney’s Affidavit,

Movant Patricia Galerie’s Affidavit,
Proposed Notice of Intention to File a Claim 1

Affidavit in Opposition 2

Reply Affidavit of Counsel,
Reply Affidavit of Movant Patricia Galerie 3

[1]. The document is labeled a Notice of Intention to File a Claim but the Court will consider it a proposed Claim.
[2]. The cause of action asserted by Mr. Galerie is derivative in nature.