Opinion
# 2014-010-027 Motion No. M-84579
04-02-2014
THOMAS WILLIAMS v. THE STATE OF NEW YORK
THOMAS WILLIAMS Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney Genera l
Synopsis
Late claim application denied, no supporting medical proof or exhibits
Case information
| UID: | 2014-010-027 |
| Claimant(s): | THOMAS WILLIAMS |
| Claimant short name: | WILLIAMS |
| 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-84579 |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | THOMAS WILLIAMS Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 2, 2014 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
The following papers numbered 1-2 were read and considered by the Court on movant's late claim application:
Claimant's Verified Motion......................................................................................1
Defendant's Affirmation in Opposition and Exhibit.................................................2
The proposed claim (Movant's Ex.) alleges that during movant's incarceration at Sing Sing Correctional Facility, Auburn Correctional Facility and Green Haven Correctional Facility, movant was not provided with his approved physical therapy sessions for nine months until his first session on October 18, 2013. On May 20, 2013, movant served defendant with a Notice of Intention to File a Claim. Claimant did not serve and file a claim. Rather, he brings this application for leave to serve and file a late claim. His purported excuse for the failure to timely commence an action is that he was unsure of the "actual ninety day deadline" (Movant's Motion, ¶ 2). Defendant concedes that the notice of intention provided notice and an opportunity to investigate the allegations. However, defendant opposes the late claim application on the ground that movant has not provided a valid excuse for his delay and claimant has not established an appearance of merit of his proposed claim.
. The notice of intention was not submitted for the Court's review on this application; thus it is unclear whether the allegations of the notice of intention may be timely asserted in a claim served and filed in accordance with Court of Claims Act.
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 [1982]).
Unlike a party who has timely commenced a claim, a party seeking to bring 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] ).
The Court has considered all of the factors under Court of Claims Act § 10 (6). The presence or absence of any one factor is not determinative. Here, significantly absent from claimant's application is something more than movant's own self-serving statement. The Court finds that, without any supporting medical proof or exhibits, claimant has failed to establish an appearance of merit of his proposed claim and this weighed heavily in the Court's determination (see Matter of Brown v State of New York, 52 AD3d 1136 [3d Dept 2008] [late claim application denied where the excuse for the delay was inadequate and proposed claim was of questionable merit]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006] [late claim application denied without medical proof linking claimed injury to alleged medical malpractice]).
Accordingly, movant's late claim application is DENIED.
April 2, 2014
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims