Movant's motion for permission to file and serve a late claim is denied for movant's failure to attach a proposed claim to the moving papers.
|Claimant short name:||FEENEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Eugene Feeney, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Ray A. Kyles, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 28, 2019|
|See also (multicaptioned case)|
Movant, an inmate proceeding pro se, brings this motion seeking permission to file and serve a late claim. Defendant opposes the motion on the ground that movant failed to attach a proposed claim to the motion. For the reasons stated below, the Court denies movant's motion.
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept. 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 ). These factors are: (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 state was substantially prejudiced; (5) whether the [movant] has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 ). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the movant's application (Savino v State of New York, 199 AD2d 254 [2d Dept. 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept. 1986]).
Here, the Court must deny the motion because of movant's failure to attach a proposed claim to his moving papers. Court of Claims Act § 10 (6) states that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany [an] application [for permission to file and serve a late claim.]" The failure to attach a proposed claim to a motion for permission to file and serve a late claim is a sufficient ground to deny the motion (Larocco v State of New York, UID No. 2004-009-33 [Ct Cl, Midey, Jr., J, May 24, 2004]; see also Grant v State of New York, UID No. 2000-001-049 [Ct Cl, Read, J., Sept. 6, 2000]). Furthermore, movant's failure to attach a proposed claim deprives this Court of the ability to assess the merits of his claim, which is the most dispositive factor in determining whether to grant an application for permission to file a late claim (see Larocco v State of New York, UID No. 2004-009-33 [Ct Cl, Midey, Jr., J, May 24, 2004]).
Based upon the foregoing, movant's motion for permission to file and serve a late claim (M-93002) is denied.
March 28, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Motion for Permission to File a Late Claim, sworn to by movant on October 1, 2018.
2. Affirmation in Opposition to Claimant's Motion to File a Late Claim, sworn to by Ray A. Kyles, AAG on November 16, 2018, with Exhibit A annexed thereto.