Michael and Melissa Gervasi (hereinafter, the "Proposed Claimants") move by Notice of Motion dated May 2, 2024, and filed with the Court on May 15, 2024, seeking an order permission to file a late claim. Defendant has opposed the motion.

Attached to their moving papers, the Proposed Claimants have submitted a proposed claim, copies of correspondence with various members of the New State Office of Parks, Recreation and Historical Preservation, as well as a "New York State Park Police Incident Report Request". In further support, they have submitted a copy of a letter to the Clerk of this Court attaching estimates for the purported damages resulting from an alleged incident which took place on June 3, 2023 at Heckscher State Park. Notably, the Proposed Claimants have not submitted affidavits in support of their motion.

The State's waiver of immunity under Section 8 of the Court of Claims Act is conditioned upon a movant's compliance with specific conditions set forth in article II, including the time limitations set forth in section 10 (see, Alston v State of New York, 97 NY2d 159 [2001]). These requirements must be "strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Hargrove v State of New York, 138 AD3d 777, 777-778 [2d Dept 2016], quoting Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]).

It is well-established that the failure to satisfy the substantive pleading requirements of Court of Claims Act § 11(b) is a jurisdictional defect that requires dismissal of the claim (see Hargrove v State of New York, 138AD3d 777 [2d Dept 2016]; Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007], Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]; Czynski v State of New York, 53 AD3d 881, 882-883 [3d Dept 2008], lv denied 11 NY3d 715 [2009]).

Motion practice in the Court of Claims is governed by CPLR 2214, 22 NYCRR 206.8 and 206.9, and in the case of motions for late claim relief, Court of Claims Act § 10 (6). These provisions require that a motion for permission to file a late clam shall include a notice of motion, a supporting affidavit (a statement sworn to before a notary public), a proposed claim and an affidavit of service.

Court of Claims Act Section 10 (6) grants the Court the discretion to allow the filing of a late claim upon consideration of all relevant factors, including whether the movant's delay was excusable, whether defendant had timely notice of and the opportunity to investigate the pertinent allegations, whether defendant would suffer substantial prejudice should the motion be granted, whether the proposed claim has the appearance of merit and whether the movant has an alternate remedy. Additionally, an application pursuant to the statute must be made prior to the expiration of the underlying statute of limitations, and it must be supported by a proposed claim that complies with the pleading requirements of Court of Claims § 11(b). It is "well settled that in deciding whether to grant an application for leave to file a late claim, the presence or absence of any one of these factors is not controlling" (Weaver v State of New York, 112 AD2d 416, 417 [2d Dept 1985]).

Here, the Proposed Claimants have failed to include any affidavits in support of the motion as is required by CPLR 2214 (b), and by failing to do so have also failed to satisfy the requirements of Court of Claims Act § 10 (6).

Accordingly, it is hereby

ORDERED, that the Proposed Claimants' motion for late claim relief, M-100883 is DENIED in its entirety.

1. Notice of Motion, Exhibits Annexed

2. Affirmation in Opposition

3. Letter to the Clerk of the Court dated May 28, 2024, Exhibit Annexed