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Court of Claims Act § 10(6) motion for permission to file a claim late denied. Lack of appearance of merit. Alleged negligent act committed by employee of Village Court.
|Claimant short name:||McQUALITY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Andrew McQuality, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Douglas R. Kemp, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||July 31, 2013|
|See also (multicaptioned case)|
For the reasons set forth below, the application of pro se Movant, Andrew McQuality, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied.
The proposed Claim, attached to the motion papers, alleges that, in or around August 2008, Movant entered into an agreement with Ian Martin to purchase Mr. Martin's home in Malone, New York. Thereafter, Movant and Mr. Martin undertook to make alterations to the home's backyard. Movant asserts that he failed to obtain a building permit for the work, and was ultimately ticketed as a result. The ticket resulted in a $500 fine. According to Movant, he gave $500 to Mr. Martin to pay the ticket, and he attaches what appears to be a receipt dated June 18, 2010 as proof of receipt of payment from Mr. Martin. The receipt states that it was received from Ian Martin and references case number "#09060111."
Movant appears to contend that this payment should have been attributed to him, and that he was mistakenly arrested on February 6, 2012 for failure to pay the $500 fine. As a result, Movant alleges, he was compelled to pay the $500 fine anew. Movant alleges the Court Clerk at the Village of Malone Court was negligent in not recording that his fine had been paid.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts a cause of action for negligence (CPLR § 214, a three-year Statute of Limitations). Movant asserts that the claim accrued on February 6, 2012, when he was forced to pay his fine a second time, not June 18, 2010, when the fine was paid the first time. The Court concludes, based upon the information provided in the proposed Claim, that whichever date is used, that the statute of limitations had not expired when the motion was served and filed.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Perhaps the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 , affd sub nom. Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
The Court of Claims is a court of limited jurisdiction with power to hear claims against the State and certain public authorities (NY Const art VI; Court of Claims Act § 9). A town or village justice, and the employees of a town or village court, are officers and employees of the town or village they serve (Cunningham v Aetna Casualty & Surety Co., 125 AD2d 950 [4th Dept 1986]; see Bishopp v Village of Spring Val., 213 AD2d 441 [2d Dept 1995]; Village Law § 4-400 [c][ii]; Town Law § 20(1); Judiciary Law § 39(1) and (6); Public Officers Law § 18). Here the alleged negligent act was committed by the Clerk at the Malone Village Court. The clerk is an employee of the town or village, not of the State of New York. This Court does not have jurisdiction over employees of the Village of Malone.
As the Court lacks jurisdiction over the actions of employees of the Village of Malone, the proposed Claim lacks the appearance of merit. Accordingly, the motion is denied.
July 31, 2013
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered on Movant's request for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6):
Notice of Motion, Motion,
Proposed Claim and Exhibits attached 1
Affirmation in Opposition
and Exhibit attached 2