The following papers numbered 1-2 were read and considered by the Court on movant’s application for leave to serve and file a late claim:Notice of Motion, Attorney’s Supporting Affirmation and Exhibits 1Attorney’s Affirmation in Opposition 2DECISION AND ORDER Movant brings this application for leave to serve and file a late claim against the State. The proposed claim alleges that on May 9, 2017, movant was in an automobile accident on the westbound Belt Parkway near the Cropsey Avenue exit in Brooklyn, New York. Movant was driving a State-owned vehicle during the course of his employment as a Division Field Investigator for the New York State Department of Motor Vehicles when his vehicle was struck in the rear by a vehicle owned by JCA Renovations Corp. and operated by John Jay Caban. The owner and the driver of the offending vehicle were not employed by the State and were not acting on behalf of the State. Nonetheless, movant seeks leave to bring a late claim against the State. The State opposes the motion on the grounds that Workers’ Compensation is the sole remedy available to movant because, at the time of the accident, he was acting in the scope of his employment with the State. The State also argues that movant’s proposed claim lacks merit because the offending vehicle was neither owned nor operated by the State.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]).While no single factor is determinative, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal (see Barnes v. State of New York, 158 AD3d 961 [3d Dept 2018]; Ortiz v. State of New York, 78 AD3d 1314 [3d Dept 2010]; Savino v. State of New York, 199 AD2d 254 [2d Dept 1993]). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the burden of establishing an appearance of merit of the proposed claim (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]).Here, the proposed claim fails to allege negligence attributable to the State and thus fails to state a cause of action upon which recovery may be had against the State (see Langner v. State of New York, 65 AD3d 780 [3d Dept 2009]; Matter of Brown v. State of New York, 6 AD3d 756 [3d Dept 2004]). Moreover, since the accident occurred during the course of movant’s employment with the State, he is barred from pursuing a claim against the State because his exclusive remedy is Workers’ Compensation benefits (Workers’ Compensation Law §29 [6]; see Paquay v. Cup of Tea, LLC, 165 AD3d 964, 965 [2d Dept 2018] [Workers' Compensation benefits are the exclusive remedy of an employee against an employer for damages and injury sustained in the course of employment]; Dumervil v. Port Auth. of N.Y. & N.J., 163 AD3d 628, 629 [2d Dept 2018] [employee eligibility for Workers' Compensation benefits is the employee's exclusive remedy against an employer for job related injuries]; Aprile-Sci v. St. Raymond of Penyafort R.C. Church, 151 AD3d 671 [2d Dept 2017] [employee's eligibility for Workers' Compensation benefits precludes a personal injury action against employer]).Accordingly, movant’s late claim application is DENIED.Dated: February 11, 2019White Plains, New York
