Opinion
# 2015-050-002 Claim No. NONE Motion No. M-85784
01-12-2015
TANAY RAJ TEWANI v. THE STATE OF NEW YORK
Scott Baron & Associates, P.C. By: James J. Cleary, Jr., Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Tracey Merritt, Assistant Attorney General
Synopsis
Claimant's motion for permission to file a late claim is denied.
Case information
UID: | 2015-050-002 |
Claimant(s): | TANAY RAJ TEWANI |
Claimant short name: | TEWANI |
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-85784 |
Cross-motion number(s): | |
Judge: | STEPHEN J. LYNCH |
Claimant's attorney: | Scott Baron & Associates, P.C. By: James J. Cleary, Jr., Esq. |
Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Tracey Merritt, Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 12, 2015 |
City: | Hauppauge |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
This is a motion pursuant to Court of Claims Act (CCA) § 10 (6) for permission to file a late claim. The motion is supported by the proposed claimant's affidavit, the proposed claim (as required by section 10 [6]) and the affirmation of proposed claimant's attorney. The motion is opposed by the defendant.
The essential nature of the proposed claim is negligence. Proposed claimant avers that he was injured at Belmont Park Race Track (Belmont) on May 31, 2014 when he was struck by a horse. He claims to have sustained serious injuries as a result of the incident.
One seeking late claim relief must demonstrate that consideration of the six factors set forth in section 10 (6) weighs in favor of the Court exercising its discretion to grant such relief. No one factor is controlling in the Court's determination of such a motion (see Jomarron v State of New York, 23 AD3d 527 [2d Dept 2005]). For example, mere absence of a reasonable excuse (for timely filing a claim or a notice of intention to file a claim) - one of the section 10 (6) factors - is not necessarily fatal to the application. Rather, the discretionary determination rests in a balancing of the statutory factors (including the six enumerated in section 10 [6]) and any others the Court determines should be considered.
In this case, no adequate excuse is demonstrated for missing the time limitations of 90 days set forth in CCA § 10 (3). Clearly, the proposed claimant did not retain counsel until about three weeks following expiration of the 90-day period (measured from the date of the subject incident, May 31, 2014). However, no reason is proffered by proposed claimant to justify the delay; thus, this factor does not weigh in proposed claimant's favor.
The Court next considers together the interrelated factors of notice of the essential facts constituting the claim, whether the State has an opportunity to investigate the circumstances and whether substantial prejudice would result to defendant if the motion is granted (see Conroy v State of New York, 192 Misc 2d 71 [Ct Cl 2002]). Here, the proposed claimant has not demonstrated with admissible proof that notice was given to the defendant. Notably absent from proposed claimant's affidavit in support (entirely devoted to the excuse issue) is any corroboration of the hearsay statement of his attorney to the effect that the proposed claimant reported the incident the day it occurred and the following day to Belmont personnel.
Proposed claimant likewise has failed to demonstrate that no other remedy is available. The defendant has demonstrated that, while it owns the property on which Belmont is operated, the operation and maintenance of Belmont is completely controlled by New York Racing Association (NYRA).
The remaining consideration is whether the proposed claim appears to have merit. As to this factor, the Courts have observed that a proposed claimant must demonstrate that "a claim must not be patently groundless, frivolous, or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444 [1st Dept 2008]). The Court finds that a showing of merit is also lacking as Belmont is operated and maintained by NYRA.
As the proposed claimant has not presented proof which warrants determination of any of the statutory factors in his favor, the motion is in all respects denied.
January 12, 2015
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims
The following papers were read and considered by the Court on the proposed claimant's motion for late claim relief:
1. Notice of Motion, Affirmation with Exhibits A and B.
2. Affirmations in Opposition (2).