Late claim application denied, movant failed to submit a proposed claim and did not set forth the particulars required to state a claim (Court of Claims Act § 10 [b]).
|Claimant short name:||CARRANZA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||FRANCISCO CARRANZA
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 21, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on movant's application for leave to serve and file a late claim:
Motion for Permission to File a Late Claim.............................................................1
Letter Dated October 10, 2018 in Opposition to the Motion....................................2
Movant brings this late claim application and refers to an attached claim; however movant fails to include a proposed claim or any attachments. Even affording this pro se movant a most liberal reading of his motion papers, movant fails to set forth the particulars required to state a claim (Court of Claims Act § 10 [b]).
The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (1) whether the delay in filing the claim 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 claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ).
The Court has considered all the relevant factors and notes that while no single factor is determinative, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal (see Barnes v State of New York, 158 AD3d 961 [3d Dept 2018]; Ortiz v State of New York, 78 AD3d 1314 [3d Dept 2010]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977] ). Furthermore, "[a] general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]). In the case at bar, movant has failed to submit a proposed claim and has not set forth the particulars required to state a claim (Court of Claims Act § 10 [b]).
Accordingly, movant's late claim application is DENIED.
November 21, 2018
White Plains, New York
Judge of the Court of Claims