New York State Court of Claims

New York State Court of Claims

DEMONTE v. THE STATE OF NEW YORK, #2009-045-014, Claim No. 114486, Motion Nos. M-76211, CM-76250


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:
Riegler & Berkowitz By: David H. Berkowitz, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 13, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on these motions: Defendant’s Notice of Motion, Defendant’s Affirmation in Support with annexed Exhibits A and B, Claimant’s Notice of Cross-Motion, Claimant’s Affirmation in Opposition and in Support of Claimant’s Cross-Motion with annexed Exhibits A-E and Defendant’s Affirmation in Opposition to Cross-Motion.

Defendant, the State of New York, has brought this motion seeking an order dismissing the claim for lack of jurisdiction pursuant to Civil Practice Law and Rules (CPLR) 3211(a)(2) and (8) due to claimant’s failure to comply with Court of Claims Act (CCA) §§ 10(3) and 11(a). Claimant, Melissa DeMonte, has cross-moved pursuant to CCA § 10(6) for permission to file a late claim.

The underlying claim in this matter concerns an incident which occurred on May 10, 2007. On that date, claimant was operating a motor vehicle which was traveling westbound on State Route 25 also known as Sunrise Highway at or near its intersection with Exit 43, Town of Islip, County of Suffolk, State of New York. Claimant’s vehicle allegedly came into contact with a defective condition in the roadway which caused claimant’s vehicle to lose control and strike a guardrail at that location.

Defendant contends that claimant served a notice of intention in this matter upon the Office of the Attorney General on August 6, 2007 by Federal Express mail as opposed to certified mail, return receipt requested as required by Court of Claims Act § 11(a). The claim in this matter was served on the Office of the Attorney General and filed with the Court on November 15, 2007. The claim was assigned claim number 114486 by the Chief Clerk of the Court.

The Court of Appeals has long held that “suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law [and that because of this] statutory requirements conditioning suit must be strictly construed” (Dreger v New York State Thruway Authority, 81 NY2d 721, 724 [1992]). Accordingly, claimants who have not met the service requirements of the Court of Claims Act have not properly commenced their actions (Lichtenstein v State of New York, 93 NY2d 911 [1999]).

Court of Claims Act § 11(a) provides, in relevant part, that a copy of the claim “... shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested...” Defendant has submitted a copy of the affidavit of service attached to claimant’s notice of intention which evinced that the notice of intention was served by Federal Express mail (see Def Exh A). Claimant does not dispute that the claim was served by Federal Express mail but instead filed a cross-motion, CM-76250 seeking, inter alia, permission to file a late claim. Claimant’s service of a notice of intention by Federal Express did not comply with the jurisdictional requirements contained within CCA § 11. (Martinez v State of New York, 282 AD2d 580 [2d Dept 2001]; Negron v State of New York, 257 AD2d 652 [2d Dept 1999]). Consequently, a valid notice of intention was never served in this matter. As a result, the claim was not properly served or filed within the time limits required by CCA § 10. Thus, this Court has no jurisdiction over the action and must dismiss the claim.

Turning to claimant’s cross-motion seeking permission to file a late claim, 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” (Matter of Brown v State of New York, 6 AD3d 756, 757 [3d Dept 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 Cooperative Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and 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.

Claimant does not offer any legally acceptable excuse for the delay in the filing of a 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. Defendant does not deny the happening of the underlying motor vehicle accident or contend that it has been unable to sufficiently investigate the accident. Additionally, although the notice of intention was legally insufficient to initiate an action it did timely provide defendant with the circumstances surrounding the claim in this matter. Thus, after weighing all the circumstances involved in the present action, these factors are found to be in claimant’s favor.

Claimant has not addressed the issue of whether she has an alternative remedy in this matter. Thus, this factor is 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 claimant has established, for the purposes of this motion, that the claim is meritorious. Claimant’s proposed claim shall consist of the entirety of claimant’s exhibit B.[1]

Therefore, based on the foregoing, defendant’s motion to dismiss the claim is granted. Additionally, having considered the statutory factors enumerated in Court of Claims Act § 10(6), the Court finds that the factors favor claimant’s application. Thus, the Court hereby grants claimant’s cross-motion to file a late claim.

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

April 13, 2009
Hauppauge, New York

Judge of the Court of Claims

[1].In the body of claimant’s cross-motion claimant alternatively requested permission to file the notice of intention and the claim. In order to avoid confusion the Court deems the proposed claim in this matter as the documents annexed as exhibit B to claimant’s cross-motion (the notice of intention, the filed claim and the police accident report).