Fox v. State of New York (2025 NYSlipOp 02190): Enforcing Strict Jurisdictional Requirements under Court of Claims Act §11(b) and Discretionary Limits on Late Claims

Introduction

In Fox v. State of New York, the Appellate Division, Second Department, addressed two interrelated issues under the Court of Claims Act: (1) the exercise of discretion to permit a late claim under § 10(6), and (2) the strict jurisdictional requirements for a malicious prosecution cause of action under § 11(b).

Background: In December 2015, claimant Frederick G. Fox served a notice of intention to file a claim against the State and the New York State Liquor Authority (SLA). In September 2016, Fox and his corporation, Foxies on the Beach, Inc. (“Foxies”), filed suit in the Court of Claims, alleging malicious prosecution and negligence. Foxies had not filed its own timely notice of claim, and in September 2017 the claimants sought leave under § 10(6) to file a late claim on its behalf. The Court of Claims denied that application in April 2018 and, in May 2020, granted the State’s motion for summary judgment dismissing Fox’s malicious prosecution and negligence causes of action. Fox and Foxies appealed.

Key Issues:

1. Whether the Court of Claims properly declined to exercise its discretion under § 10(6) to allow Foxies to file a late claim.
2. Whether Fox’s malicious prosecution claim satisfied the strict statutory requisites of § 11(b), particularly the requirement to specify the date the underlying criminal proceeding terminated in his favor.
3. Whether Fox stated a viable negligence cause of action by alleging that the SLA breached a special duty to him.

Summary of the Judgment

The Appellate Division unanimously affirmed both the denial of leave to file a late claim for Foxies and the grant of summary judgment dismissing Fox’s causes of action. The court held that:

• Foxies failed to show a reasonable excuse for the late notice, the State lacked timely notice of Foxies’ claim, and Foxies had an alternate remedy—thus the § 10(6) factors did not favor granting leave.
• Fox’s malicious prosecution cause of action was jurisdictionally defective under § 11(b) because neither the notice of intention nor the claim specified the date the criminal proceeding terminated in his favor.
• Fox’s negligence claim failed because the SLA’s actions were discretionary, and no special duty beyond the public’s general interest was owed to him.

Analysis

Precedents Cited

• Court of Claims Act § 10(6)–Tucholski v. State of New York, 122 AD3d 612; Dominguez v. State of New York, 218 AD3d 440; Bay Terrace Coop. v. NYSERS, 55 NY2d 979. These cases outline the six-part discretionary test for late claims: excusable delay, State’s notice of essential facts, State’s investigatory opportunity, claim merits, prejudice, and alternate remedies.
• Malicious Prosecution Elements–Broughton v. State, 37 NY2d 451; De Lourdes Torres v. Jones, 26 NY3d 742; O’Dell v. County of Livingston, 174 AD3d 1307. These decisions define the four elements: commencement, favorable termination, absence of probable cause, and malice.
• Sovereign Immunity and § 11(b) Strictness–Lepkowski v. State, 1 NY3d 201; Dreger v. Thruway Auth., 81 NY2d 721; Kolnacki v. State, 8 NY3d 277; Geneva Foundry Litig., 173 AD3d 1812. These authorities confirm that statutory conditions for suing the State are in derogation of the common law and must be strictly construed. Jurisdictional requirements cannot be waived for equity.
• Special Duty in Negligence–Applewhite v. Accuhealth, 21 NY3d 420; Lauer v. City of New York, 95 NY2d 95; Talisaysay v. State, 220 AD3d 652. These cases clarify when a governmental entity owes a special duty beyond its general public obligations.

Legal Reasoning

1. Late Claim under § 10(6): The Court considered the enumerated factors and found:

• No reasonable excuse for Foxies’ failure to file on time (Dominguez; Cox v. NYS Thruway Auth., 186 AD3d 560).
• The State lacked notice that Foxies—rather than just Fox—was injured, because the 2015 notice omitted any corporate claimant.
• Foxies had an alternative remedy (Fox v. Gross, 219 AD3d 584).
• Jurisdiction over Foxies could not be saved by CPLR 2001, as the defect was jurisdictional, not a mere irregularity.

2. Malicious Prosecution under § 11(b): Sovereign immunity is waived only where claimants strictly comply with § 11(b)’s five conditions. Fox’s claim omitted the date of the criminal proceeding’s favorable termination, rendering the claim jurisdictionally defective and unexcusable for lack of prejudice rationale. 3. Negligence and Special Duty: The SLA’s licensing and enforcement activities are discretionary governmental functions. Fox did not allege that he belonged to a protected class under a statute, that the State voluntarily assumed a special duty, or that it took positive control of a known hazard. Absent any of these, no duty beyond the public’s was owed.

Impact

This decision underscores two important ripples in New York’s sovereign-claims landscape:

1. Strict Compliance Mandate: Claimants must meticulously draft notices and claims to satisfy § 11(b). Failure to identify critical dates, such as termination of a criminal proceeding, will doom malicious prosecution claims as jurisdictionally defective.
2. Limited Late‐Claim Relief: Courts will rigorously apply the § 10(6) factors. Absent excusable delay or demonstrated prejudice to the State, claimants cannot rely on equitable discretion to cure late notice.

Future litigants and their counsel must be vigilant in early and precise claim preparation, and governmental defendants can confidently assert technical defenses to preserve sovereign immunity.

Complex Concepts Simplified

• Sovereign Immunity Waiver: New York State cannot be sued unless it consents via statutory waiver. The Court of Claims Act is that waiver, but only if claimants strictly meet its requirements.
• Court of Claims Act § 10(6): A discretionary safety valve allowing late claim filing, but only if delay is excusable and the State is not prejudiced.
• § 11(b) Jurisdictional Prerequisites: A notice or claim must list the nature, date, place, damages, and total sum claimed. Omitting any element—especially the date a criminal case ended favorably—robs the court of power to hear a malicious prosecution suit.
• Special Duty in Tort: Governments generally owe no more duty than to the public at large. A “special duty” arises only in narrow circumstances, such as a statute-created class or a voluntary assumption of responsibility.

Conclusion

Fox v. State reaffirms that New York’s Court of Claims defers to precise statutory drafting and will not tolerate jurisdictional shortcuts. Claimants must:

1. File timely notices of intention accurately naming all claimants;
2. Specify each element required by § 11(b), especially dates critical to a cause of action;
3. Understand that late‐claim relief under § 10(6) is granted sparingly.

This ruling will shape claimant strategies and bolster governmental defenses, ensuring that sovereign immunity retains its intended protective boundaries.