Motion for leave to serve and file a late claim granted, claimant's vehicle struck in the rear by state vehicle, no prejudice to defendant shown.
|Claimant(s):||KULJIT S. RATHOR|
|Claimant short name:||RATHOR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||RAPPAPORT, GLASS, GREENE & LEVINE, LLP
By: Matthew J. Zullo, Esq.
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: John Healey, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 1, 2010|
|See also (multicaptioned case)|
The following papers numbered 1-3 were read and considered by the Court on movant's motion for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1
Defendant's Affirmation in Opposition....................................................................2
Reply Affirmation and Exhibits................................................................................3
The proposed claim alleges that on July 26, 2007, movant sustained personal injuries when the vehicle he was operating was stopped at a red traffic signal when it was struck in the rear by a vehicle operated by Scott Hildreth, a State employee who was acting within the course of his employment as a coach for the State University of New York, Plattsburgh at the time of the accident. The accident occurred on the eastbound exit 4 ramp of Interstate 287 in Elmsford, New York. Movant submits his own affidavit, his medical records showing that he required knee surgery after the accident (Reply, Ex. G), and the police accident report (Motion, Ex. B).
Court of Claims Act §10(6) requires that the Court consider, among other relevant factors: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).
While movant does not offer a valid excuse for the delay, the presence or absence of any one factor is not determinative (id.) Most significantly, movant has shown the appearance of merit of the proposed claim (see Nozine v Anurag, 38 AD3d 631; Mangum v Trabulsi, 294 AD2d 472). Also, movant may not have another available remedy and defendant has failed to demonstrate any significant prejudice.
Upon consideration of all the relevant factors, the Court GRANTS movant's motion for leave to file and serve a late claim in the same form as the proposed claim (Motion, Ex. D) in compliance with the provisions of the Court of Claims Act within 30 days of receipt of a filed copy of this Decision and Order.
It is noted that the Court's conclusion with regard to the appearance of merit is limited to this Decision and Order; a greater burden of proof rests upon movant to prevail at trial.
March 1, 2010
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims