action asserting a like claim in New York

1978Subdivision 6 of section 10 of the Court of Claims Act (eff Sept. 1, 1976), which applies retroactively (Kelly v State of New York, 57 AD2d 320, 327 ), provides that a claimant who fails to file a claim or notice of intention within the 90-day period as required by subdivision 3, may in the discretion of the court be permitted to file a late notice of claim "before an action asserting a like claim * * * would be barred under the provision of article two of the civil practice law and rules”.

1977(Kelly v State of New York, 57 AD2d 320 .) Among the new provisions governing the exercise of the court’s discretion is whether an action asserting a like claim would be barred under the limitations of CPLR article 2.

2025Court of Claims Act § 10(6) provides six factors to be established [FN2] and directs that a copy of the proposed claim, containing all of the relevant information set forth in Court of Claims Act § 11 shall accompany the application. "'No one factor is deemed controlling, nor is the presence or absence of any one factor determinative'" ( Casey v State of New York , 161 AD3d 720, 721[2d Dept 2018]; see Decker v State of New York , 164 AD3d 650, 652 [2d Dept 2018]; Qing Liu v City Univ. of NY , 262 AD2d 473 [2d Dept 1999]).

2025Court of Claims Act § 10(6) provides six factors to be established [FN2] and directs that a copy of the proposed claim, containing all of the relevant information set forth in Court of Claims Act § 11 shall accompany the application. "'No one factor is deemed controlling, nor is the presence or absence of any one factor determinative'" ( Casey v State of New York , 161 AD3d 720, 721[2d Dept 2018]; see Decker v State of New York , 164 AD3d 650, 652 [2d Dept 2018]; Qing Liu v City Univ. of NY , 262 AD2d 473 [2d Dept 1999]).

2010Here, the claimant’s motion, in effect, for leave to file a late claim was made after all applicable limitations periods had expired and, thus, the Court of Claims properly denied the mo tion (see Roberts v City Univ. of N.Y., 41 AD3d 825 [2007]; Crum & Foster Ins.

2007Co. v Schimmel, 22 AD3d 616 [2005]; Schetzen v Robotsis, 273 AD2d 220, 221 [2000]; Wrase v Bosco, 271 AD2d 440, 441 [2000]).

2004Here, claimant seeks leave to late file a cause of action, defamation, which is subject to the one-year statute of limitations found in CPLR 215 (3) (Firth v State of New York, 98 NY2d 365 [2002]).

2004However, such application must be made “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules” (Court of Claims Act § 10 [6]), otherwise, the court lacks subject matter jurisdiction to grant the relief (Miller v State of New York, 283 AD2d 830 [2001]).

2001The failure to file such application within the proscribed time period “creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief’ (Byrne v State of New York, 104 AD2d 782, 783 , lv denied 64 NY2d 607 [emphasis omitted]).

1986Here, the three-year Statute of Limitations for negligence actions (see, CPLR 214) began to run on September 22, 1982 (see, Riley v State of New York, 105 AD2d 1104 ; see also, Schwartz v Heyden Newport Chem.

1980As already noted, by the time this case came on for trial in 1977 the first sentence of subdivision 6 of section 10 had been amended to authorize a Court of Claims Judge in the exercise of discretion to permit a claimant who had failed to file a claim or notice of intention within two years after decedent's death "to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." As we held in Caffaro v Trayna ( 35 N.Y.2d 245, 250 , supra ), the combination of EPTL 11-3.

1980As already noted, by the time this case came on for trial in 1977 the first sentence of subdivision 6 of . section 10 had been amended to authorize a Court of Claims Judge in the exercise of discretion to permit a claimant who had failed to file a claim or notice of intention within two years after decedent’s death “to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.” As we held in Caffaro v Trayna ( 35 NY2d 245, 250 , supra), the combination of EPTL 11-3.3

1978"The 90-day period is the crucial time and if there is adequate excuse for letting that time go by, the effective disability [of the claimant] need not continue through all the succeeding period[s] before the motion to file the claim is made” (Bloom v State of New York, 5 AD2d 930, 931 ).

1977Although at the time of the act complained of herein the outside limit for allowing the filing of late claims was two years after the accrual of the cause of action (former § 10, subd 5 of the Court of Claims Act, amd by L 1976, ch 280, § 1, eff Sept. 1, 1976), because the amendment allowing a filing any time within the Statute of Limitations period is remedial in nature it should he given retroactive effect (see Nolan v County of Otsego, 55 AD2d 422 ).

1977A claimant who fails to file a claim or notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article 2 of the civil practice law and rules. * * * In determifiing whether to permit the filing of the claim pursuant to this subdivision, the court shall consider, among other factors, whether the delay in fili