New York State Court of Claims

New York State Court of Claims
SCHREIBER v. THE STATE OF NEW YORK, # 2010-033-383, Claim No. None, Motion No. M-78139

Synopsis

Case information

UID: 2010-033-383
Claimant(s): ROGER SCHREIBER
Claimant short name: SCHREIBER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-78139
Cross-motion number(s):
Judge: James J. Lack
Claimant's attorney: Kevin P. Sheerin, Esq.
Defendant's attorney: Andrew M. Cuomo, New York State Attorney General
By: Kimberly A. Kinirons, Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 21, 2010
City: Hauppauge
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This is a claim brought by Roger Schreiber (hereinafter "movant") due to the alleged negligence of the defendant, the State of New York (hereinafter "State"). The alleged negligence occurred on July 16, 2009 in Farmingdale, 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.

Based on the foregoing, the Court concludes that the statutory factors favor movant's application and, therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD3d 527). Movant is directed to serve and file the proposed claim within forty-five (45) days of the filing of this Decision and Order in accordance with 10, 11 and 11-a of the Court of Claims Act.

June 21, 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: Notice of Motion dated April 9, 2010 and filed April 12, 2010; Affirmation of Kevin P. Sheerin, Esq. with annexed Exhibits A-C dated April 9, 2010 and filed April 12, 2010; Affidavit of Roger Schreiber sworn to March 4, 2010 and filed April 12, 2010; Affirmation in Opposition to Motion to Amend the Claim and Motion to File a Late Claim of Kimberly A. Kinirons, Esq. with annexed Exhibits A-C dated April 26, 2010 and filed April 27, 2010; Reply of Kevin P. Sheerin, Esq. with annexed Exhibits A-D dated April 27, 2010 and filed April 28, 2010.