|Claimant short name:||KOLZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court sua sponte amends the caption to reflect The State of New York as the only properly named Defendant.|
|Judge:||James J. Lack|
|Claimant's attorney:||Riconda & Garnett, LLP
By: John Riconda, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Todd A. Schall, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 21, 2010|
|See also (multicaptioned case)|
Wilma Kolz (hereinafter "movant") seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)(2) due to the alleged negligence of the defendant, the State of New York (hereinafter "State"). The alleged negligence occurred on March 12, 2008, in Rockville Centre, New York.
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. Movant is also directed to take note of the Court's amendment of the caption.
June 21, 2010
, New York
James J. Lack
Judge of the Court of Claims
2. The following papers have been read and considered on movant's motion: Notice of Motion For Leave to Serve Late Notice of Claim dated January 8, 2010 and filed January 11, 2010; Affirmation in Support of John Riconda, Esq. with annexed Exhibits A-D dated January 8, 2010 and filed January 11, 2010; Affidavit in Support of Wilma Kolz sworn to December 29, 2009 and filed January 11, 2010; Affirmation in Opposition of Todd A. Schall, Esq. dated February 5, 2010 and filed February 8, 2010; Reply to Affirmation in Opposition of John Riconda, Esq. with Exhibits A-B dated February 23, 2010 and filed February 24, 2010.