Late claim application denied. Mmovant has not made any allegation of negligence attributable to the State; fails to state a cause of action..
|Claimant short name:||WADE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||ROBERT WADE
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
|Third-party defendant's attorney:|
|Signature date:||August 30, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on movant's application to serve and file a late claim:
Notice of Motion, Claimant's Affidavit in Support and Proposed Claim
Movant submits this application for leave to serve and file a late claim alleging that on March 20, 2018, during movant's incarceration at Downstate Correctional Facility, movant:
"suffer several lacerations to my body. I went through depression, loss of family, stress, mentally, emotionally and disturbed. I also went through physical pain with my arms and hand that cause damage nerves and loss of feeling in my hand"
(Proposed Claim, ¶ 2). Notably, movant does not allege how he suffered the injuries he claims to have suffered, nor does he allege any basis upon which defendant could be held liable for such injuries.
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] ). While "[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]), here, movant has not made any allegation of negligence attributable to the State. The Court has reviewed the proposed claim and finds that the conclusory allegations contained therein fail to state a cause of action (see Langner v State of New York, 65 AD3d 780 [3d Dept 2009] [late claim application denied even though defendant admitted no prejudice where conclusory allegations were not enough to show a meritorious cause of action]; Matter of Brown v State of New York, 6 AD3d 756 [3d Dept 2004] [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]).
Accordingly, movant's late claim application is DENIED.
August 30, 2018
White Plains, New York
Judge of the Court of Claims