New York State Court of Claims

New York State Court of Claims
GARY v. THE STATE OF NEW YORK and THE NEW YORK RACING ASSOCIATION, INC., # 2010-016-001, Claim No. None, Motion No. M-77158


Late claim motion was denied.

Case information

UID: 2010-016-001
Claimant(s): ELLIS GARY
Claimant short name: GARY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-77158
Cross-motion number(s):
Judge: Alan C. Marin
Claimant's attorney: Estrin, Benn & Lane, LLC
By: Melvyn J. Estrin, Esq.
Defendant's attorney: Andrew M. Cuomo, Attorney General
By: Gwendolyn Hatcher, AAG
Third-party defendant's attorney:
Signature date: January 6, 2010
City: New York
Official citation:
Appellate results:
See also (multicaptioned case)


Ellis Gary moves for permission to file a late claim pursuant to 10.6 of the Court of Claims Act (the "Act"). In his proposed claim, Mr. Gary alleges that on March 9, 2009, while he was at the Aqueduct Race Track in South Ozone Park, he was injured when he fell from a defective chair.

Ordinarily, in order to determine a late claim motion, six factors must be weighed: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.

In this case, however, a more fundamental issue must be reached. The Aqueduct Race Track is owned and operated by the New York Racing Association, Inc., "a nonprofit racing association established pursuant to the New York Racing, Pari-Mutuel Wagering and Breeding Law, for the purpose of owning, operating and conducting thoroughbred racing at three tracks in this State: Aqueduct, Belmont Park and Saratoga . . ." Discenza v New York Racing Assn., 134 Misc 2d 3, 4 (Civ Ct, Richmond County 1986). Claimant does not contradict defendant's assertion that the New York Racing Association, Inc. is an entity distinct from the State of New York, and that the State of New York does not own or operate the Aqueduct Race Track.

The Court of Claims has jurisdiction only to hear claims against the State of New York and certain other entities specified by statute; jurisdiction does not statutorily obtain with regard to the New York Racing Association, Inc.

In view of the foregoing, having reviewed the submissions(1) , IT IS ORDERED that motion no. M-77158 be denied.

January 6, 2010

New York, New York

Alan C. Marin

Judge of the Court of Claims

1. The following were reviewed: claimant's notice of motion with affirmation in support and exhibit A; and defendant's affirmation in opposition.