The Court of Claims Act provides two remedies. The most commonly used is a motion for permission to file a late claim (see §10(6) of the Court of Claims Act). The motion papers should include: (1) a notice of motion, (2) a supporting affidavit or affidavits, (3) copies of any relevant exhibits, (4) a copy of the proposed claim, and (5) an affidavit of service of the motion papers on the defendant(s). In deciding such a motion, the court considers the following factors:

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 the opportunity to investigate the circumstances underlying the claim;
4. whether the claim appears to be meritorious;
5. whether the failure to serve the State within the statutory period resulted in substantial prejudice to the State;
6. whether the claimant has any other available remedy.

There is a substantial body of case law interpreting this statute and addressing the questions of what makes a delay excusable, how much of a showing of merit must be made, what is the meaning of “substantial prejudice,” etc.

The time limit for making a motion for permission to file a late claim is the statute of limitations that would apply to a similar action against a non-governmental entity as set forth in Article 2 of the CPLR. Thus, for an intentional tort claim, the motion must be made within one year of accrual; for a medical malpractice claim, within 2 1/2 years of accrual; for a negligence claim, within three years of accrual; for a breach of contract claim, within six years of accrual. If the motion is not made before the relevant time period expires, the court cannot grant the motion.

Another option, set forth in section 10(8) of the Court of Claims Act, is a motion to treat a Notice of Intention as a Claim. The remedy is applicable where a claimant timely serves a Notice of Intention but fails to timely serve or file a Claim. The court shall may not grant such an application unless the Notice of Intention was timely served and unless the motion is made within the statute of limitations that would apply to a similar action against a non-governmental entity.

To view the answer to this and other helpful FAQs, please visit NYCourts.gov.