New York State Court of Claims

New York State Court of Claims

KUNA v. THE STATE OF NEW YORK, #2009-045-004, Claim No. None, Motion No. M-75461


Late claim motion MVA granted. Flooding, property damage

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:
Allan Kuna, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 27, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Claimants’ Notice of Motion, Claimants’ Affidavit with annexed Proposed Claim and Exhibits A-E, Defendant’s Affirmation in Opposition with annexed Exhibit A and Claimants’ Reply Affidavit with annexed Exhibits A and B. Claimants, Allan Kuna and Ellen Kuna, have brought this motion seeking an order granting leave to file a late claim[1] pursuant to Court of Claims Act (CCA) § 10(6). Defendant, the State of New York, has opposed this application.

Claimants allege in the proposed claim, inter alia, that on July 18, 2007 water accumulated on Port Washington Boulevard and overflowed onto their residence due to defendant’s negligence causing damage in the amount of $176,000.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” provided the Statute of Limitations as set forth in article 2 of the CPLR has not elapsed (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.

Claimants do not offer any legally acceptable excuse for the delay in the filing of their claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Claimants state that on July 19, 2007 they contacted the New York State Department of Transportation and requested that an inspector conduct an investigation of the flood damage to their home. Additionally, similar flooding events were the subject of numerous letters sent to various state representatives over the years prior to the subject incident. Finally, letters specifically referencing the July 18, 2007 flood were sent to various state representatives in September and October of 2007. Thus, after weighing all the circumstances involved in the present action, these factors are found to be in claimants’ favor.

It appears as though claimants may have an alternate remedy against a private entity in Supreme Court. Thus, this factor must be found in defendant’s favor.

The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to “appear to be meritorious”: (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists. ...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).

The Court finds that claimants have established, for the purposes of this motion, that their claim is meritorious.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10(6), the Court finds that the factors favor claimants’ application. Thus, the Court hereby grants claimants’ motion to file a late claim.

Accordingly, within sixty (60) days of the date this decision and order is filed, claimants shall file and serve the proposed claim, together with a payment of the appropriate filing fee, pursuant to Court of Claims Act § § 11 and 11-a.

January 27, 2009
Hauppauge, New York

Judge of the Court of Claims

[1].The Court of Claims does not provide for the filing of a late Notice of Claim.