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
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 ). 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 ).
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 ). 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
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.
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.