Opinion
# 2020-040-046 Motion No. M-95799
12-07-2020
CLARENCE RISCH v. THE STATE OF NEW YORK
Clarence Risch, Pro Se LETITIA JAMES Attorney General of the State of New York By: Thomas J. Reilly, Esq., AAG
Synopsis
Pro se Movant's Motion to file a late Claim pursuant to CCA § 10(6) denied as the Court lacks jurisdiction over the Town of Greenport.
Case information
| UID: | 2020-040-046 |
| Claimant(s): | CLARENCE RISCH |
| Claimant short name: | RISCH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-95799 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Clarence Risch, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Thomas J. Reilly, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 7, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of pro se Movant, Clarence Risch, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied.
In his proposed Claim attached to his motion papers, Movant asserts that, on or about August 4, 2018, a "Greenport Code Enforcement Officer" improperly ordered Movant's 2002 Dodge Sport 4-wheel drive pick-up truck to be towed from Movant's property in the City of Hudson, New York without lawful reason or a Court order (proposed Claim, ¶ 3). Movant further asserts in the proposed Claim that, pursuant to Town law, he was permitted to have an unregistered vehicle on his property (id., ¶ 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. Since the proposed Claim asserts a cause of action for negligence (CPLR § 214[5], a three-year Statute of Limitations), it appears that the proposed Claim is timely made as Movant asserts that the negligence occurred on August 4, 2018.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Perhaps the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
The Court of Claims is a court of limited jurisdiction, with power to hear claims against the State and certain public authorities (NY Const Art VI; Court of Claims Act § 9). This Court does not have jurisdiction over the Town of Greenport, or any individual employee thereof (Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 [1977]; Concepcion v State of New York, UID No. 2019-040-040 [Ct Cl, McCarthy, J., Jun. 12, 2019]; Lyons v State of New York, UID No. 2004-030-904 [Ct Cl, Scuccimarra, J., Feb. 18, 2004]; Webb v State of New York and The Administration for Children's Services (ACS), UID No.2003-016-051 [Ct Cl, Marin, J., July 1, 2003]).
As the Court lacks jurisdiction over actions that involve the Town of Greenport, or any individual employee thereof, the proposed Claim lacks the appearance of merit.
Accordingly, the Motion is denied.
December 7, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Movant's Motion to file a late claim pursuant to Section 10(6) of the Court of Claims Act: Papers Numbered Notice of Motion, Affidavit in Support, and Exhibit attached 1 Affirmation in Opposition 2