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
that, on October 14, 2008 at approximately 1:15 p.m., Ms.
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
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). 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.
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 , rearg denied 8 NY3d 994 ).
Furthermore, ‘a lack of prejudice to the State is an immaterial
factor’ (Byrne v State of New York, 104 AD2d 782, 784 , lv
denied 64 NY2d 607 )” (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