New York State Court of Claims

New York State Court of Claims

ROCHESTER GAS & ELECTRIC v. THE STATE OF NEW YORK, #2000-005-528, Claim No. NONE, Motion No. M-61006


Late claim denied. No appearance of merit in hearsay allegations that a wooden utility pole was damaged when fallen tree was being removed; it appears damage occurred when tree fell in the first instance.

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):

Donald J. Corbett, Jr.
Claimant's attorney:
Nixon Peabody, LLPBy: Brian P. Madrazo, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Reynolds E. Hahn, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 17, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


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.

August 17, 2000
Rochester, New York

Judge of the Court of Claims