Claimant's motion to file a claim late pursuant to CCA § 10(6) denied as statute of limitations expired. Motion to strike four affirmative defenses also denied.
|Claimant(s):||In the Matter of the Claim of EDUARD SORIN|
|Claimant short name:||SORIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the State of New York as the proper defendant.|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Devon M. Wilt, Esq.|
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Sean Virkler, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||May 23, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, the application of Claimant, Eduard Sorin, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied. In addition, Claimant's Motion to strike four affirmative defenses raised in the State's Answer to the Claim is denied.
On March 30, 2017, Claimant filed a Claim with the office of the Clerk of the Court. That Claim was assigned Claim No. 129501. Claimant now moves for permission to serve and file a late Claim pursuant to Court of Claims Act § 10(6) for the same incident described in Claim No. 129501. Claimant attached a copy of that Claim to the Motion papers filed with the office of the Clerk of the Court on March 9, 2018, and, then, in Reply to Defendant's statement in its opposition papers that Claimant did not attach a proposed Claim to his Motion papers, attached a newly verified, almost identical copy, of Claim No. 129501, as his proposed Claim. The proposed Claim alleges that, on February 6, 2015, Claimant was incarcerated at Riverview Correctional Facility and that, at approximately noon, he was walking on the blacktop walkway to the facility's School Building when he slipped and fell because the walkway was covered in ice (Proposed Claim, ¶¶ 3, 4).
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 in failing to properly maintain the walkway. Negligence causes of action have a three-year Statute of Limitations (CPLR § 214).
Here, Claimant alleges, in the proposed Claim, as well as in the Claim that was filed with the office of the Clerk of the Court, that his Claim accrued on February 6, 2015 (Proposed Claim, ¶¶ 3, 4). Therefore, the three-year statute of limitations expired by the time Claimant served and filed this Motion on March 9, 2018. As a movant is permitted to file a late claim only if the underlying cause of action is not time barred (Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675 [3d Dept 1999]; Marine Midland Bank v State of New York, 195 AD2d 871[3d Dept 1993], lv denied 82 NY2d 661 ), Claimant's Motion for permission to file a late claim is denied. While Claimant's Notice of Motion seeks to strike four affirmative defenses raised in the State's Answer to Claim No. 129501, the issue was not addressed in Claimant's papers and, thus, this part of the Motion is denied.
May 23, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered on Claimant's application for permission to file a late claim:
Notice of Motion,[Affirmation] of Devon M. Wilt, Esq.,
& Exhibits attached 1
Affirmation in Opposition of Sean Virkler, Esq., AAG,
& Exhibits attached 2
Reply of Devon M. Wilt, Esq., & Exhibit attached 3
Filed Papers: Claim, Answer