Late claim application denied, no proposed claim included with motion papers, no appearance of merit.
|Claimant short name:||BASABE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK, DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, MEDICAL UNIT, EASTERN NY CORRECTIONAL FACILITY|
|Footnote (defendant name) :|
|Claimant's attorney:||JONATHAN BASABE
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Belinda A. Wagner, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 30, 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 late claim:
Notice of Motion, Movant's Supporting Affidavit and Exhibit.............................1
Defendant's Affirmation in Opposition and Exhibits...............................................2
Movant brings this motion pursuant to Court of Claims Act § 10 (6) which requires the Court to consider, among other relevant factors, the following six factors set forth in the aforenoted section 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 ).
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]). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" and movant's own unsubstantiated allegations do not show an appearance of merit (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]; Klingler v State of New York, 213 AD2d 378 [2d Dept 1995] [movant's unsupported opinion does not suffice to establish merit of their claim]).
It appears that movant is seeking leave to serve and file a late claim in the same form as Claim No. 130224.(1) Movant, however, does not include a proposed claim with his motion papers. It is further noted that the Court is required to address the aforenoted factors enumerated in Court of Claims Act § 10 (6) in determining whether to grant such an application. In addressing these factors, the appearance of merit has been held to be a most significant factor in the Court's determination. Movant's failure to include a proposed claim with his motion papers and to establish an appearance of merit of his proposed claim is fatal to his application (see Langer v State of New York, 65 AD3d 780 [3d Dept 2009]).
Accordingly, movant's motion for leave to serve and file a late claim is DENIED.
January 30, 2018
White Plains, New York
Judge of the Court of Claims
1. Movant's "Affidavit in Support of Claim" was assigned Claim No. 130224. By Decision and Order of this Court filed stamped December 6, 2017, that claim was dismissed because it was not timely commenced in accordance with the mandates of the Court of Claims Act (Basabe v State of New York, UID No. 2017-054-009 [Ct Cl, Rivera, J., Nov. 16, 2017]).