New York State Court of Claims

New York State Court of Claims

McDONALD v. THE STATE OF NEW YORK, #2000-004-516, Claim No. 100165, Motion No. M-60864


Court of Claims § 10 (6) application for permission to late file - accident at alleged dangerous intersection - granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
SICHOL & HICKS, P.C.BY: William R. Sichol, Jr., Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 16, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Movant moves for an order pursuant to § 10 (6) of the Court of Claims Act granting permission to file a late claim or for an order granting permission pursuant to § 10 (8) (a) of the Court of Claims Act treating the notice of intention as a claim.

The following papers are before the Court:

Notice of Motion, filed December 6, 1999 1

Affidavit of Nicholas P. Pucino, in support of motion,
sworn to November 12, 1999 2

Affidavit of Peter McDonald, in support of motion,
sworn to November 17, 1999 3

Affirmation of William R. Sichol, Jr., Esq., in support
of motion, dated December 2, 1999, with attached exhibits 4

Affidavit of Dean A. Smith, in opposition to motion,
sworn to December 17, 1999 5

Affirmation of James E. Shoemaker, AAG, in opposition to motion,
dated January 11, filed January 13, 2000, with attached exhibits 6

Reply Affidavit of Nicholos P. Pucino, in support of motion,
sworn to January 25, 2000 7

Reply Affirmation of William R. Sichol, Jr., Esq., in support
of motion, dated January 28, 2000, with attached exhibits 8

While this is a motion for permission to late file, a Claim was actually served and filed, albeit late. The Attorney General served a Verified Answer with the issue of timeliness preserved as an affirmative defense. (Paper No. 4, ¶ 6). The Court in its discretion will, sua sponte, dismiss the Claim and decide the motion for permission to late file.[1]

The proposed Claim alleges in pertinent part:
3. This claim is for damages suffered by claimant by reason of the negligence of the State of New the repair, construction and maintenance of a [sic] certain public highways....

4. The time, when and the place where such claim arose and the nature of the same are as follows: At approximately 1:45 a.m. on 2/15/97 at the intersection of St. 55A and St. 55 in the Town of Neversink, County of Sullivan, State of New York, the claimant, travelling [sic] in generally a southerly direction on St. 55A in a 1993 Jeep owned by the City of New York Department of Environmental Protection, attempted to stop for a stop sign but was unable to due to black ice causing slippery roadway conditions. Claimant's vehicle slid through the intersection, across St. 55, passed over a guiderail which was laid down and not in an appropriate upright position, and continued down an embankment striking and coming to rest against a tree.

5. Claimant alleges that the State of New York...was negligent and careless in failing to maintain the guiderail on St. 55 in an appropriate manner; in failing to repair the guiderail on St. 55; in failing to have in place an adequate and proper guiderail, or other device, to keep the vehicle which claimant was operating from going down the embankment on St. 55; in failing to make adequate inspection of said State highways to determine the need for guiderail repair/replacement and in failing to make such repairs/replacements as were necessary; in installing in the first instance, an inadequate and improper guiderail on St. failing to attend to an icy road condition which prevented claimant from stopping his vehicle; in failing to salt or sand the intersection, or make timely inspection thereof when it knew, or...should have known, of the icy conditions of said failing to place flares or other warnings or warning devices at said intersection; in being otherwise careless and negligent in the design, construction, maintenance and repair of St. 55 and 55A, their shoulders and guiderails.


8. Notice of intention to file this claim was filed in the office of the Clerk of the Court of Claims on the 28th day of April, 1999, and in the office of the Attorney General on the 28th day of April, 1999.

(Paper No. 4 , Exhibit A)

A reading of the proposed claim reveals that the claim arose on February 15, 1997. Therefore this application, served and filed before the applicable statute of limitations expired, is timely.

The Court of Claims Act requires that a notice of intention be served, or a claim filed with the Clerk of the Court as well as served, within ninety days of the accrual of the claim (Court of Claims Act § 10 [3]).

Since Movant did not comply with the service and filing requirements (see, Paper No. 4, ¶ 6), he seeks permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). Section 10 (6) empowers the Court to grant permission to late file a claim when a potential claimant has failed to comply with the filing and service requirements.[2]

Section 10 (6) of the Court of Claims Act sets forth six factors that the Court must consider:
In determining whether to permit the filing of a claim pursuant to this subdivision, the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.

(Court of Claims Act § 10 [6])

No one factor standing alone necessarily controls. (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981; cf., Marcus v State of New York, 172 AD2d 724, 725). The Court must look at each factor and then determine whether, on balance, they weigh in favor of allowing a Movant to file a late claim against the State.

The Court will first consider whether Movant has offered a sufficient excuse for the delay in filing the Claim. The reason given by Movant's counsel, law office failure (Paper No. 4, ¶ 6) is not sufficient. Thus, this factor favors the State.

The next three factors, notice, opportunity to investigate, and prejudice, are best considered together. Clearly, these factors favor the Movant. A Notice of Intention to File Claim was served on the Attorney General on April 28, 1997 (Paper No. 6, ¶ 4). This Notice of Intention is, in substance, the same as the Proposed Claim (supra, p 2-3). It afforded the State notice and a reasonable opportunity to investigate. Thus, the State will not be substantially prejudiced should the Court allow the Movant to file a late claim.

In order for a Claim to have an appearance of merit, a Movant must establish that the Claim is not patently groundless, frivolous or legally defective, and the Court must find, upon consideration of the entire record, including the proposed Claim, that there is reasonable cause to believe a valid cause of action exists. (Rosenhack v State of New York, 112 Misc2d 967; Matter of Santana v State of New York Thruway Auth., 92 Misc2d 1).

Consideration of the appearance of merit factor herein, as viewed by counsel, presents two distinct issues. (1) Does it appear that the State may have been negligent in not attending to or warning of an icy road condition in the area of the accident and (2) Does it appear that the State may have been negligent in not having proper guardrails in place at the scene of the accident.

With regard to the question of the alleged icy condition of the roadway, State's counsel affirms in pertinent part:
13. Claimant does not allege that the State had actual notice of an icy condition and then failed to exercise due diligence to address the problem area on the highway. Valentino v. State of New York, supra.

14. The Department of Transportation logs, the snow and ice reports, and the ACCU weather reports indicate that the weather on February 14 and 15 of 1997 was overcast and above freezing throughout the evening and early morning hours around the time of the accident (see ¶4 Affidavit of Dean A. Smith and see also Exhibit E, DOT log book reports, Exhibit F, Highway maintenance supervisor's daily report, Exhibit G, the snow and ice control operations report, and Exhibit H, the ACCU weather reports maintained by the New York State Department of Transportation).

(Paper No. 6)

The State has submitted the Affidavit of Dean A. Smith, a State Civil Engineer, wherein

he avers, in pertinent part:

4. Having reviewed our records for February 14th and 15th, I make the following observations: as of 5:00p.m., it was overcast, the temperature was 36 degrees. The weather conditions remained the same, that is, overcast and above freezing throughout the evening and into the morning hours, until 4:00a.m. on February 15th, approximately two hours after the accident.

5. As a precautionary measure, The Department of Transportation Maintenance Crew out of Liberty outpost placed salt on the roadway surface of Route 55 at approximately 10:53 p.m.. The N.Y.S.D.O.T. received no calls or complaints of icy conditions within its entire jurisdiction of Sullivan County that evening. That would include from approximately 6:00 p.m. to 4:00 a.m. on February 15th.

(Paper No. 5)

Movant has not supplied the Court with anything countering these submissions by the State. Movant's counsel affirms: "While discovery may produce evidence that the State had actual notice of the icy condition at the intersection and should have taken action to salt or sand, Movant's showing of an appearance of merit for purposes of this motion rests chiefly on the fact that a guide rail, which should have contained his vehicle, had been destroyed in a previous accident and had not been replaced or repaired as required by State guidelines." (Paper No. 8, ¶ 6)

Movant avers:
I attempted to stop at the stop sign, but was unable to do so because of ice on the roadway. I was unable to control my vehicle as it continued to slide on ice and traveled completely across Route 55 where it entered a deep ravine. I next became aware that I was injured and that my vehicle had violently struck a tree head on in the ravine. Fortunately, my radio was still working and I called for help. As stated in the proposed Claim, I suffered very serious injuries as a result of my vehicle falling into the ravine and colliding with the tree.

(Paper No. 3, ¶ 3)

Movant nowhere states in his affidavit how he determined that his vehicle slid on ice. Indeed, from his description of the accident, it seems highly unlikely to the Court that he thereafter examined the surface of the road. That is not the case with regard to the investigating police officer, however. Movant has submitted a copy of the police accident report prepared on the date of the accident. We find thereon after "Accident Description/Officer's Notes" the following, "DRIVER VEH. TRAVELING S/B ST 55A ATTEMPTED TO STOP FOR STOP SIGN, UNABLE TO STOP VEH. DUE TO SLIPPERY RDWY. CONDITIONS. VEH. SLID THROUGH INTERSECTION..." (Paper No. 4, Ex. E) Nowhere in the Police Accident Report do we find the cause of the slippery road conditions described as ice. In light of the foregoing, the Court finds that the proposed Claim, insofar as the allegations with regard to ice on the surface of the highways is concerned, lacks the appearance of merit.

In support of the motion, Nicholas P. Pucino, a professional engineer, avers, in pertinent part:
3. Since early 1997, I have been retained by the above-mentioned Claimant to investigate and render an opinion as to highway-related conditions existing at or near the intersection of New York State Route 55 and 55A on and prior to February 15, 1997, as they relate to Claimant's accident on said date. Among other things, I have reviewed NYSDOT records of prior accidents at said location, scene photographs, roadway photo logs and record plans of the condition of the intersection over a period of years, and of the installation, maintenance and repair of a guide rail system at said location.

4. Although my investigation of this intersection is not complete, and will no doubt be supplemented by further materials obtained prior to trial, I can state with a reasonable degree of engineering certainty that (i) for several years prior to the accident, the State had notice of other accidents at the intersection of Routes 55 and 55A which involved serious damage to a guide rail protecting vehicles from a precipitous drop in elevation from the road surface to the bottom of a deep ravine, (ii) the design of the original guide rail system placed by the State would have been sufficient to contain Claimant's vehicle, however, it was damaged by a number of accidents and repairs made by the State were incomplete and introduced a combination of systems, which reduced the ability of this railing to contain a vehicle, and subsequent damage to the rail system prior to Claimant's accident made the guide rail system ineffectual, and (iii) for years prior to Claimant's accident, the State was aware or should have been aware that said guide rail system was not functional and was in need of repair or replacement.

(Paper No. 7)

In opposition, Dean A. Smith (see supra, p 6) avers in pertinent part:
2. Prior to making this affidavit I have reviewed the proposed claim, the affidavit of Nicholas P. Pucino, photographs of the scene of the accident, construction plans, and have reviewed and photographed the site distance on Route 55A approaching State Route 55. In my job as a Civil Engineer 1 for the Department of Transportation, I am of course very familiar with this intersection.

3. In addition to the above, I have reviewed the daily radio logs, the Highway Maintenance Supervisor reports and the Accuweather reports provided to the Department of Transportation for the date in question.


6. That section of State Route 55 is owned by New York City Department of Environmental Protection but is maintained by N.Y.S.D.O.T. forces. Route 55A, which intersects with Route 55 at a T intersection, is also owned by N.Y.S.D.E.P. but is maintained by Sullivan County Department of Public Works, which contracts with the Town of Neversink Highway Department for snow and ice removal.

7. New York State did not design or construct Route 55 in the area where the accident occurred. As earlier indicated, the State of New York does maintain that stretch of roadway. The stretch of guiderail in question had been damaged by automobiles on numerous occasions and had been repaired. Significantly, the guiderail was destroyed in a fatal accident on December 14, 1996. At that time I went to that scene and set up standard orange cones (approximately 3 feet in height) until guiderail could be replaced. Later that day, the General Foreman, Rich Decker, placed orange with white reflective stripe barrels in that area also. Guiderail does not get replaced during winter.

8. Guiderail (even newly replaced) is not designed to sustain a 90 degree impact.

(Paper No. 5)

In response to the above affidavit of Dean A. Smith, Nicholas P. Pucino, avers, in pertinent part:
4. My inspection of the intersection where the accident occurred and my review of the accident history indicates that this was a potentially very dangerous intersection which was accident prone, particularly during inclement weather. As Mr. Smith notes, "[t]he stretch of guide rail in question had been damaged by automobiles on numerous occasions . . ." before this accident. Affidavit, dated December 17, 1999, of Dean A. Smith at par. 7. A vehicle travelling [sic] on Route 55A which, for whatever reason, failed to stop and crossed over Route 55 faced a precipitous drop into a deep ravine, resulting in serious injury, unless the vehicle was restrained by some form of guide rail. As noted in my previous affidavit, in my opinion, the design of the original guide rail system at this location would have been sufficient to contain the Claimant's vehicle, which merely slid toward the railing at relatively low speed. Unfortunately, Claimant received no guide rail protection since the previously mis-matched system was laying down, as explained below.

5. Mr. Dean correctly observes that there was a fatal accident on December 14, 1996, (two months before the Claimant's accident) in which a vehicle apparently travelling [sic] a high speed drove through the guide rail and entered the ravine. See Exhibit B to Affidavit, dated December 17, 1999, of Dean A. Smith. However, Mr. Dean does not mention the accident that took place on January 7, 1997, wherein a car driven by Ms. Betty Shaver slid over this very same embankment because the guide rails were down from the December 14, 1996, accident. A copy of the New York State Fire Department Incident Report relating to the Shaver accident is attached as Exhibit A. The Shaver accident was markedly similar to the Claimant's accident and served notice to the State of the high potential for even the most prudent motorist to slide across the intersection during winter conditions. (This also should have been obvious from the severe banking of route 55, which tends to propel a sliding vehicle toward the embankment). Still the State did nothing useful about the situation and, some 5 weeks later, the Claimant slid through the very same run of un-repaired guide rail as Ms. Shaver.

6. It should also be noted that the accident history in this location did not begin in 1996. On December 4, 1994, Morton Gottesman went across the intersection through this same run of guide rail and down the embankment. A copy of the New York State Police Accident Report relating to the Gottesman accident is attached as Exhibit B. There is information of earlier accidents as well. Instead of just patching and mis-matching parts of old guide rail systems and newer posts, the guide rail should have been fully replaced, preferably with a W-beam system that could sustain moderate impacts and still remain serviceable with little or no repair effort.

7. According to Mr. Smith, the guide rail was "destroyed" in the December 14, 1996, accident, but no repairs were made before the Claimant's accident because "[g]uiderail does not get replaced during winter." Affidavit, dated December 17, 1999, of Dean A. Smith. at par. 7. According to the Highway Maintenance Guidelines in use at the time by New York State Regional Highway Maintenance Engineers, Resident Engineers and Foremen of Highway Maintenance Subdivision, a damaged guide rail should have been repaired immediately:

"3.612 Standard: Guide rail should be maintained as near as possible to the original construction condition. Guide rail which is out of alignment should be straightened. Posts should also be plumb. A neat, clean, uniform and aligned appearance is desirable. Installations should be inspected regularly and bent or damaged rail should be repaired immediately. Guide rail should be inspected and reconditioned every spring as soon as weather conditions permit." Highway Maintenance Guidelines at p.3-14. [Emphasis added.]

8. Although it may frequently prove impractical for the State to make every guide rail repair "immediately", as the Guidelines require, in my opinion, a guide rail such as this one, which was "destroyed" in such a sensitive, known, highly dangerous and accident-prone location, should have received immediate attention and been repaired prior to Claimant's accident.

9. While New York State guide rails are not specifically designed for high-speed impacts at 90-degree approach angles, research tests show they are capable of restraining such vehicles at the speed involved in the McDonald accident. The Kenetic [sic] Energy perpendicular to the guide rail exerted by Claimant's vehicle was well within the range of lateral Kenetic [sic] Energy (the component perpendicular to the rail) exerted by vehicles used in published research tests of NYS guide rail systems. These tests reveal that low-to-moderate speed impacts can be contained with acceptable levels of deceleration, even at 90-degrees. In fact, New York State frequently uses guide rails at intersections to handle vehicles where large impact angles are expected, but approach speeds are assumed to be moderate.

10. By stating that the guide rail system was not designed for 90-degree impacts, Mr. Dean incorrectly implies that no protection could be provided even for motorists coming in the rail at low to moderate speeds. Large-angle impacts into this run of guide rail were expected owing to the road layout and, in fact, had been occurring regularly prior to Claimant's accident. The State then had an obligation to address this situation and provide a means whereby such vehicles would be contained if approaching at a reasonable rate of speed.

(Paper No. 7 [emphasis in original])

The Court finds that the proposed Claim has an appearance of merit with regard to the safety of the intersection.

For reasons that are not clear, Movant's engineering expert and the State's engineering expert focused their attention on the guiderail, or the lack thereof, instead of addressing the more fundamental issue of why the guiderail or its remnants were continually pummeled by vehicles passing into and through the intersection and striking the guiderail or its remnants.[3] In other words, one would think the primary focus would not be on whether an intact guiderail would keep a vehicle from descending into the ravine (a concrete wall would serve that purpose quite nicely) but rather on the reason or reasons why vehicles pass into and through the intersection and strike the guiderail or its remnants in the first place. Movant's engineer alludes to this issue, i.e., "...the severe banking of Route 55, which tends to propel a sliding vehicle towards the embankment". (see supra, p 9) This may be one factor, but there may be others. In any event, since it is conceded that the guiderail was damaged by automobiles "on numerous occasions" and in light of the fact that two serious accidents, one fatal, occurred at this intersection within approximately two months prior to the subject accident[4] the Department of Transportation (DOT) had notice, not simply that cars might go over the embankment if the guiderail was not in good condition, but that vehicles may be proceeding through the intersection and striking the guiderail at an abnormal frequency. Stated otherwise, it appears that the DOT may well have had notice that this intersection was dangerous, not simply because the guiderail might not have been intact, but also because it appears to have been repeatedly struck by vehicles passing through the intersection. In this regard, one can certainly question whether cones and/or barrels, placed at the location of the damaged guiderail, would somehow have lessened the risk of vehicles passing, out of control, through the intersection. Ultimately, Movant will be required to show that "prior accidents of a similar nature were caused by the same or similar contributing factors which caused the instant accident". (Hough v State of New York, 203 AD2d 736, 739) That may be developed further through further investigation and discovery. For purposes of this motion, Movant has established an appearance of merit with regard thereto.

Since Claimant avers that he was "driving my regular patrol route" as an employee of the "New York City Department of Environmental Protection" (Paper No. 3, ¶ 4) it appears likely that he has another remedy, to wit, workers' compensation. However this factor, weighed in the balance, should not prevent the Claimant seeking redress in this Court.

In light of the foregoing, it is

ORDERED, sua sponte, that Claim No. 100165 is dismissed and it is

ORDERED that the Movant's Motion No. M-60864 is GRANTED and Movant is directed to file and serve a revamped Claim in accordance with this Decision and Order and in strict compliance with the Court of Claims Act, within 45 days of the date of the filing of this Decision and Order.

June 16, 2000
Binghamton, New York

Judge of the Court of Claims

For the reasons set forth in Konviser v State of New York, 180 Misc 2d 174, and in Brill v State of New York, Bell, J., Claim No. None, Motion No. M-60994, filed March 27, 2000 this Court must deny that aspect of this motion that seeks relief pursuant to Court of Claims Act § 10 (8) (a).
Section 10 (6) of the Court of Claims Act states in pertinent part:
A claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general 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 two of the civil practice law and rules. . . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application.
With regard to this, the Court infers that the State's engineering expert's statement that "the stretch of guiderail in question had been damaged by automobiles on numerous occasions and had been repaired" (supra, p 9 [emphasis added]), is a reference to automobiles that were unable to stop for some reason and passed through the intersection, striking the guiderail at or near a 90 degree angle to Route 55A.
Interestingly, neither of these prior accidents appear to have been attributed to an icy road condition. (see, Paper No. 7, exhibits A and B)