In Shah v. State of New York, 2019 NY Slip Op 08884 (App. Div. 2nd Dept. Dec. 11, 2019) – a failure-to-hire national origin discrimination case – the court affirmed the lower court’s decision denying the claimant’s motion seeking leave to file a late notice of claim.
In sum, the claimant commenced this action, alleging that the New York State Office of Mental Health (OMH) wrongfully denied him employment. Defendant made a pre-answer motion to dismiss under CPLR 3211(a)(2) and Court of Claims Act §§ 10 and 11. The Court of Claims granted the motion to dismiss. The claimant then moved for leave to reargue the defendant’s motion to dismiss, or alternatively, for leave to file a late claim pursuant to Court of Claims Act § 10(6). The Corut of Claims denied the claimant’s motion; the claimant now appeals. By this decision, the Second Department affirms.
The court summarized the applicable law:
Court of Claims Act § 10(6) permits a court, in its discretion, upon consideration of the enumerated factors, to allow a claimant to file a late claim” (Tucholski v State of New York, 122 AD3d 612, 612). “No one factor is deemed controlling, nor is the presence or absence of any one factor determinative” (Qing Liu v City Univ. of N.Y., 262 AD2d 473, 474; see Broncati v State of New York, 288 AD2d 172, 173). However, if a claim is legally deficient, leave to file a late claim should be denied even if the other factors tend to favor the granting of the request (see Savino v State of New York, 199 AD2d 254, 255; Prusack v State of New York, 117 AD2d 729, 730; Rosenhack v State of New York, 112 Misc 2d 967, 969 [Ct Cl]). “A claimant seeking permission to file a late claim must do so within the statute of limitations provisions set forth in CPLR article 2
Applying the law, the court held that the Court of Claims providently exercised its discretion in denying that branch of the claimant’s motion which was for leave to file a late claim, explaining:
The claimant failed to timely serve his claim upon the Attorney General as required by Court of Claims Act § 10(3), and his motion for leave to serve a late claim was not made within the applicable statute of limitations period as required by Court of Claims Act § 10(6). Where the time within which to make an application has expired, the Court of Claims has no discretion to grant leave to file a late claim (see Chaudry v State of New York, 167 AD3d 704, 704; Golia v State of New York, 162 AD3d 861, 862). Furthermore, the court properly determined that the claimant failed to adequately set forth sufficient facts demonstrating that his claims were meritorious[.]