On February 16, 2000, the following papers, numbered 1 to 4, were read on motion
by Claimant for permission to file a late claim:
1, 2 Notice of Motion and Affidavit and Exhibits Annexed
3 Opposing Affirmation
4 Claimant's letter reply dated February 13, 2000
Upon the foregoing papers, this motion is denied.
Claimant seeks permission to file a late claim pursuant to Court of Claims Act
§ 10(6), relating to an incident occurring on or about August 13, 1999.
Initial service of the moving papers was accomplished on or about December 7,
1999, and thus the motion was initiated less than one month after expiration of
the ninety day filing and service period required by Court of Claims Act
§§ 10(3) and 11.
This motion is timely made within the constraints of CPLR article 2, and a
proposed claim is properly submitted. Under § 10(6), I must consider six
statutory factors. As for an excuse for the failure to have timely filed,
Claimant offers the affidavit of Elizabeth Casey, a Staff Investigator, who
advises that on or about September 27, 1999, after having submitted a letter and
an invoice to the New York State Department of Transportation (DOT) covering the
cost of the alleged damages, she had not been advised by a representative of DOT
that filing and serving a claim or serving a notice of intention was necessary.
There is no allegation that DOT was under a duty to have done so. In any event,
this excuse falls under the general category of ignorance of the law, and does
not provide an acceptable excuse. Of course, one need not satisfy all six
statutory factors in order to be successful (Bay Terrace Coop. Section IV v
New York State Employee's Retirement Sys., 55 NY2d 979).
Claimant alleges that the Defendant was given timely notice of the essential
facts and the opportunity to investigate because RG&E's invoice was timely
sent to DOT. Neither party discusses the availability of alternative remedies
and I perceive none. While prejudice is not raised by the parties, some
prejudice exists, as noted below.
More significantly, it is the issue of the appearance of meritoriousness which
is always pivotal, and a burden which I find Claimant cannot overcome. The
underlying cause of action herein relates to damage to a thirty-five foot wood
pole which allegedly was damaged through the negligence of the Defendant on
August 13, 1999, on Empire Boulevard in the Town of Irondequoit. There are
several versions of the allegations as to the cause of this damage. First,
Claimant's Staff Investigator provides information which comes from reports by
employees of RG&E, the first of which is dated August 14, 1999 (Exhibit A)
and which reports that a "State-owned tree fell ... breaking pole ... we called
for tree crew ... before State broke another pole." The Irondequoit Police
Report (Exhibit B) recites that a tree fell and struck a moving motor vehicle
and further "caus[ed] RG&E pole ... to partially break ... requiring NYS DOT
Special Services response ..." The Staff Investigator characterizes this report
as identifying DOT as the party responsible for the damage to the wood pole in
question. Reading that report to Claimant's greatest possible benefit does not
permit, let alone suggest, such a conclusion.
The invoice (Exhibit C) and the proposed claim both state that the thirty-five
foot pole was damaged by a tree "while being removed" by DOT on August 13,
1999. These are the only sources of allegations that the tree may have fallen
while it was being removed by DOT. The inference drawn is that the tree had not
fallen, but was being removed from the ground by DOT (as if it were diseased or
earmarked for removal), which caused it to fall on a pole. In other words, the
proposed claim does not clearly describe the essential facts or allegations of
negligence, evoking some measure of prejudice, albeit not substantial.
In opposition, the Defendant provides the affidavit of a Highway Maintenance
Worker for DOT who avers under oath in essence that he investigated the fallen
tree on Empire Boulevard which had struck a motor vehicle and broken a utility
pole. He avers that he notified RG&E, that DOT personnel cut the tree limbs
that were on the ground, that RG&E workers cut the tree and that State
employees cleaned up. He avers, without dispute, that no State worker was
involved in cutting any part of the tree in the vicinity of the wires, and that
he observed the broken utility pole when he arrived at the scene. He opined
that it was windy that day, and suggests that the wind caused the tree to fall.
While Claimant demurs that the State's opposition asserts an issue of fact to be
resolved after the filing of a claim, it asserts in its letter, for the first
time with any clarity, that it is RG&E's contention that during the State's
removal of a fallen tree, the wood pole was damaged.
The Claimant's application fails to show the appearance of merit. At first
reading, I thought they were alleging that the State's negligence was in
allowing the tree to fall upon and damage the wooden pole. Certainly Exhibit A,
the Property Damage report relied upon in its entirety for the information
provided by the Staff Investigator for her affidavit in support of this motion,
which recites that "we called for tree crew to remove tree from cable &
rtc..., " strongly suggests that RG&E personnel removed that part of the
tree which affected the pole and wires after it fell. Furthermore, that same
report states that the tree fell, breaking the pole ½ way up. This
contradicts counsel's allegation that the pole was damaged when the State
removed the fallen tree. The papers lack clarity or a consistent logical theory
of the Defendant's negligence, but more prominently lacking is the affidavit of
someone with first-hand knowledge of what allegedly took place at the scene of
the fallen tree and the wooden pole.
Claimant's own accident report (Exhibit A) suggests that the pole was broken
when the tree fell, and does not intimate that the damage occurred while DOT was
trying to remove the tree after it had fallen. The Defendant provides the sworn
affidavit of an individual who was present, and while self-serving, swears under
oath that the pole was already broken when he arrived at the scene and that
State personnel had nothing to do with cutting any part of the tree in the
vicinity of the wires. In short, Claimant has failed to persuade me that the
proposed claim has the appearance of merit. The theories of negligence, let
alone the clarity and hearsay nature of the papers, do not persuade me that a
valid cause of action exists (Matter of Santana v New York State Thruway
Authority, 92 Misc 2d 1, 11), and based upon the above, and after balancing
all the statutory factors, I decline to exercise my discretion to permit the
proposed claim to be filed. The motion is denied.