New York State Court of Claims

New York State Court of Claims

McDONALD v. THE STATE OF NEW YORK, #2000-004-531, Claim No. None, Motion No. M-62079


Late filing application initially denied, reargument granted and upon reconsideration,

application 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. SHOEMAKERAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 20, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Movant moves for permission to reargue the motion which gave rise to the Decision and Order of this Court dated June 16, 2000, and filed June 28, 2000 granting Movant permission to late file a "revamped" Claim pursuant to Court of Claims Act § 10 (6). (see, Paper No. 4)

The following papers were considered by the Court:
Notice of Motion, filed July 24, 2000 1

Affirmation of William R. Sichol, Jr., Esq., in support of motion,
dated July 20, 2000, with attached exhibits 2

Letter from James E. Shoemaker, AAG, in opposition to motion,
dated August 24, 2000 3

Decision and Order, Hanifin, J., dated June 16, 2000, filed
June 28, 2000 4

In support of the motion, Movant's counsel affirms, in part:

4. In granting Claimant's motion for permission to serve a late claim, the Court specifically found that the claim had an appearance of merit only insofar as it alleged that the State had notice of the dangerous nature of the intersection between Routes ST 55 and ST 55A and had failed to take corrective action. Decision and Order, Ex A at p. 13. However, the Court also specifically held that the claim did not have an appearance of merit insofar as the allegations with regard to ice on the surface of the highways is concerned. Decision and Order, Ex A at p. 8. Claimant respectfully submits that this latter finding was incorrect and evidently based on a misapprehension of the evidence presented on the motion.

5. It is not entirely clear to me that this motion is necessary. The proposed claim contained one cause of action for negligence. The Court did not state that Claimant's application was denied insofar as it was based upon icy road conditions. Although the Court found no appearance of merit as to the State's failure to attend to an icy roadway, the test of whether there is an appearance of merit is only one of six considerations required by Section 10(6) and, by itself, is not necessarily controlling. Moreover, the Court did find an appearance of merit insofar as a claim was made that the State was negligent in not having proper guardrails in place and with regard to the unsafe condition of the intersection. The Court directed Claimant to file a "revamped Claim in accordance with this Decision and Order." It is not clear to me that the Court intended to preclude the Claimant from including allegations based on the icy condition of the roadway as part of a negligence cause of action. However, I thought it prudent to bring on this motion in case that was the Court's intention.

6. In the proposed claim, among other things, Claimant alleged that the State was negligent "in failing to attend to an icy road condition which prevented claimant from stopping his vehicle; in failing to salt or sand the intersection, or to make timely inspection thereof when it knew, or in the exercise of reasonable care should have known, of the icy conditions of said highways..." Proposed Claim annexed as Exhibit A to the Affirmation, dated December 2, 1999, of William R. Sichol, Jr., submitted on the motion, at par. 5.

7. In general, the Court's findings of no appearance of merit with regard to ice on the roadway was based upon the contents of the Affidavit, dated December 17, 1999, of Dean A. Smith, a Department of Transportation Civil Engineer, concerning his review of the State's record of weather conditions in Monticello, New York, during the night of the accident, a DOT record indicating the intersection had been salted two and a half hours before the accident, the alleged fact that no calls or complaints of icy conditions had been received, and the Court's belief that there was a lack of any reference to icy conditions in the Police Accident Report. Decision and Order, Ex A at pp 6-8; see Affidavit, dated December 17, 1999, of Dean A. Smith, attached hereto as Exhibit C.. [sic]

8. The Court misapprehended the contents of the State Police Accident Report relating to Claimant's accident. The Court stated in his Decision and Order that "[n]owhere in the Police Accident Report do we find the cause of the slippery road conditions described as ice." Decision and Order, Ex A at p.8. This statement is plainly incorrect. A copy of the Police Accident Report and the accompanying Cover Sheet K are attached hereto as Exhibit B. In completing the Accident Diagram portion of the Report, which appears in the center of the Report, the officer drew a series of closely spaced, connected horizontal lines which covered the entire intersection as well as an extended portion of ST 55A. By a drawing and a note written in the upper left corner of the Diagram, the officer indicated that this series of lines "denotes icy pavement". Accordingly, the Accident Diagram portion of the Police Accident Report clearly shows that the entire intersection, including the entire path of Claimant's vehicle, was covered with icy pavement". Moreover, using the Cover Sheet, the officer inserted the number "4" in code area 6, which indicates that the "Roadway Surface Condition" was "Snow/Ice". Code area 19 contains a "66"[1], which indicates that "Pavement Slippery" was an "Apparent Contributing Factor". The Officer's Notes confirm that Claimant was unable to stop "DUE TO SLIPPERY RDWY CONDITIONS."

9. Accordingly, the State Police Report confirms the Claimant's recollection that he was unable to stop and slid through the intersection because of "ice on the roadway". Affidavit, dated November 17, 1999, of Peter McDonald at par.3. Although the Claimant did not state how he determined that his vehicle slid on ice, virtually every driver in this area of the country has at some time felt the effects of sliding out of control on ice and ice on the roadway may also be visible to the driver. Certainly, his failure to explain whether he saw or felt, or saw and felt, the presence of ice should not discredit his testimony that his vehicle slid on ice.

10. As to the contents of Mr. Smith's affidavit, he did not claim to be a meteorologist, or otherwise qualified to give an opinion as to local weather conditions on the surface of a paved highway near the Roundout Reservoir near Neversink in mid-Winter. See, Affidavit, dated December 17, 1999, of Dean A. Smith Ex C at paras. 3-5. The "Accu" weather reports he allegedly relied upon were not submitted on the motion and there was no affidavit from anyone capable of testifying as to them. Moreover, Mr. Smith's conclusions were rebutted by the Claimant and the State Police who were personally present at the accident scene. In addition to the Claimant's testimony and the State Police Report of icy roadway conditions, the fact that Mr. Smith reported that a DOT maintenance crew placed salt on the roadway surface of Route 55 at 10:53 p.m. is certainly evidence that the DOT knew that icy roadway conditions existed or were expected to occur during the night.

11. In fact, the State presented no competent evidence at all which would call into question the existence of icy roadway conditions at the intersection in question, or rebut Claimant's version of how the accident happened. The undisputed facts that significant icy conditions did exist at this intersection, that the State admittedly knew the intersection had a history of serious accidents in which vehicles entered the ravine, that the State knew the protective guide rail had been "destroyed", that there was severe banking of ST55 which tended to propel a sliding vehicle toward the embankment, and that the State had admittedly placed salt on ST55 earlier in the evening, are sufficient to fairly raise an issue as to whether the State had actual or constructive knowledge of the icy condition and exercised due care on the night of the accident to insure that this intersection was reasonably safe for motorists.

12. A motion for leave to file a late claim does not search the record, as would a motion for summary judgment.[2] Applying the two-fold test of Matter of Santana v. New York State Thruway Auth., 92 Misc. 2d 1, 11, 399 N.Y.S.2d 395, 402-403 (Ct. of Cl. 1977), to the instant case: (i) The claim regarding icy roadway conditions is certainly not "patently groundless, frivolous, or legally defective," and (ii) considering the entire record, the claim, and all affidavits and exhibits, there is "reasonable cause to believe that a valid cause of action exists." As stated in Santana, this standard "does not, and should not, require [the claimant] . . . to definitively establish the merits of his claim, or overcome all legal objections thereto, before the Court will permit him to file." 92 Misc. 2d at 11-12, 399 N.Y.S. 2d at 403. Indeed, a claim has an appearance of merit if "subject to proof thereof, [it] appears valid . . . ." Matter of V. v. State of New York, 150 Misc. 2d 156, 157, 566 N.Y.S.2d 987, 988 (Ct. of Cl. 1991). Where the proposed claim meets the parameters of a valid and viable cause of action the Claimant should not be denied an opportunity to conduct discovery which might uncover evidence sufficient to prove the claim. In any event, the Claimant should not be required to prove the proposed claim on a motion for leave to serve a late claim under Section 10(6).

(Paper No. 2 [original footnote omitted] [footnotes added])

In response, State's counsel supplied the Court with a letter, which reads in pertinent part:

It is the position of the defendant, State of New York, that the Court did not misapprehend the evidence, nor did it misapply the law with respect to this portion of the Court's decision. Defendant respectfully requests that this Court reaffirm its decision and order finding that the proposed claim with regard to ice on the surface of the highways lacks the appearance of merit.

(Paper No. 3).

The Court did "misapprehend the evidence", at least with regard to the Police Accident Report, which does indeed indicate "icy pavement" at the accident scene.

In this Court's prior Decision and Order, this Court discussed the issue of the icy roadway:

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).


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 [sic] Department of Transportation Maintenance Crew out of Liberty outpost placed salt on the roadway surface of Route 55 at approximately 10:53 p.m.. [sic] 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.


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. 2, Ex A)

The mere fact that an accident occurred because a vehicle skidded on ice on a highway does not, in and of itself, establish negligence. (Timcoe v State of New York, 267 AD2d 375) Ordinarily, Defendant must have either actual or constructive notice of the dangerous condition, e.g. ice, and then fail to take timely and reasonable measures to correct such condition, for liability to follow. (Brooks v New York State Thruway Authority, 73 AD2d 767 affd 51 NY2d 892). Further, "Something more than a mere formal allegation of negligence on the part of the State is needed (see, Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11)". (Sevillia v State of New York, 91 AD2d 792) With regard to ice on the surface of the road, the Court finds that, upon reconsideration, there is something more.

Viewing the submissions with regard to the factual context of the subject accident in a light most favorable to the Claimant, it appears there may have been ice on the pavement at the time of the subject accident. According to the averment of Dean A. Smith, a State Civil Engineer, submitted on the prior motion (see supra, p 6) the Department of Transportation (DOT) placed salt on the roadway surface at 10:53 p.m. (the Court infers on February 14) approximately 2¾ hours prior to the subject accident. Obviously, since the police accident report recites that there was ice on the pavement at the intersection at the time of the accident, at least three issues of fact are raised. They are (1) whether the State engineer's averment that the DOT "placed salt on the roadway surface of Route 55" necessarily means that the subject intersection was salted since one can reasonably infer that Route 55 consists of something more than simply an intersection; (2) that the State records are incorrect; or (3) that the salting process was negligently performed. Further, with regard to this same DOT engineer's averments with regard to weather conditions and temperature (see supra, p 6) there obviously are similar issues of fact. According to the DOT engineer, DOT records indicate that the temperature remained above freezing from 5:00 p.m. the evening prior to the accident up to the time of the accident. Since the police accident report indicates the intersection was icy at the time of the accident, there obviously is an issue of fact with regard to the accuracy of these records or their relevance to the scene of the accident.[3]

Further, Claimant's engineer avers that his "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" and that "the severe banking of Route 55, which tends to propel a sliding vehicle towards the embankment". (Paper No. 4, pp 10 and 11 [emphasis added])

In sum, therefore, viewing the submissions in a light most favorable to the Claimant, the Court finds that the Claim does have an appearance of merit with regard to the DOT's notice of an icy pavement condition at the scene of and at the time of the accident, as well as the response thereto. The Court therefore finds that Claimant should have permission to file the proposed Claim as originally presented to the Court.

In light of the foregoing, it is

ORDERED that Movant's motion to reargue is GRANTED, and upon reconsideration, this Court GRANTS the relief sought, to wit, Claimant is directed to serve and file the original proposed Claim herein in strict accordance with Court of Claims Act § 11, within 45 days of the date of filing of this Decision and Order.

September 20, 2000
Binghamton, New York

Judge of the Court of Claims

  1. Box number 19 was partially cut-off during the photocopying process so that all of what the Court will assume to be number "66" is not visible.
  2. [2]Contrary to Claimant's counsel's assertion, the Court weighing a motion for leave to file a late Claim examines all of the papers submitted with regard to such an application.
  3. [3]Neither party has addressed the possibility that the subject intersection may have been shielded from the sun as a result of topographical features or vegetation.