New York State Court of Claims

New York State Court of Claims
RIOS v. THE STATE OF NEW YORK, # 2010-033-368, Claim No. None, Motion No. M-77349


Case information

UID: 2010-033-368
Claimant(s): OSCAR RIOS
Claimant short name: RIOS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-77349
Cross-motion number(s):
Judge: James J. Lack
Claimant's attorney: Oscar Rios, Pro Se
Defendant's attorney: Andrew M. Cuomo, New York State Attorney General
By: Michele M. Walls, Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 24, 2010
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


This is a claim brought by Oscar Rios (hereinafter "movant") due to the alleged negligence of the defendant, the State of New York (hereinafter "State"). The alleged negligence occurred on December 23, 2007, in Napanoch, New York.

Movant seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act 10(6)(1) .

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act 10(6): (1) whether the delay in filing 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 failure to serve or file a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; (5) whether the movant has another available remedy; and (6) whether the claim appears to be meritorious. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

The Court has reviewed the parties' papers in support of and in opposition to the motion. Movant's papers are defective in that he has failed to include a proposed claim [Court of Claims Act 10(6)].

Based on the foregoing, movant's motion for permission to file a late claim against the State of New York pursuant to Court of Claims Act 10(6) is denied.

March 24, 2010

Hauppauge, New York

James J. Lack

Judge of the Court of Claims

1. The following papers have been read and considered on movant's motion: Permission to File Late Claim sworn to October 8, 2009 and filed October 13, 2009; Affirmation in Opposition of Michele M. Walls, Esq. dated November 18, 2009 and filed November 18, 2009.