New York State Court of Claims

New York State Court of Claims

KYLE v. THE STATE OF NEW YORK and THE NEW YORK STATE DEPT. OF TRANSPORTATION, #2000-010-045, Claim No. None, Motion No. M-61941


Synopsis


Claimant's late claim application

Case Information

UID:
2000-010-045
Claimant(s):
JESSICA KYLE
Claimant short name:
KYLE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK AND THE STATE OF NEW YORK DEPARTMENT OF TRANSPORTATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-61941
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
LAW OFFICES OF DOMINICK J. ROBUSTELLIBy: Peter W. Yoars, Jr., Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 21, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's late claim application:
Proposed Claim, Notice of Motion, Attorney's Supporting Affidavit and Exhibits...1

Attorney's Affirmation in Opposition and Memorandum of Law.............................2

The proposed claim alleges that on June 29, 1999, at approximately 6:40 p.m., claimant was driving westbound on Route 35 approaching the intersection with Route 22 in the Town of Bedford, County of Westchester, when claimant attempted to make a left turn onto Route 22 southbound, and was struck by a vehicle traveling east on Route 35. According to claimant's attorney, both drivers claimed to have had a green light (Attorney's Supporting Affidavit, ¶ 3). The alleged negligence of the State, set forth in the Proposed Claim and summarized in ¶ 14 of the Attorney's Supporting Affidavit, is in the "installation, operation, maintenance, management, conduct, control and supervision of intersection and traffic control device therein."

Prior to claimant's June 29, 1999 accident, on April 1, 1999, claimant's brother, Christopher Kyle, was a passenger in a vehicle which was involved in a motor vehicle accident at the same location (Claimant's Exs. C, D). On or about April 6, 1999, claimant's brother retained an attorney to pursue a claim on behalf of claimant's brother and a derivative claim on behalf of claimant's father. On June 30, 1999, a Notice of Intention was served upon the Attorney General's office on behalf of claimant's brother (Claimant's Ex. D). In connection with the brother's claim, the attorney received notice by letter, dated August 13, 1999, that the State and, not the Town of Bedford, was responsible for the roadways at the accident location (Claimant's Ex, E). Claimant's motion papers also include an affidavit of a Westchester County employee, dated July 13, 1999, regarding the brother's claim and stating that, pursuant to an investigation of the accident location, the county was not responsible for the roadways or the traffic signal at the accident location (Claimant's Ex. E).

On August 19, 1999, claimant retained her brother's attorney (Claimant's Supporting Affidavit, ¶ 9). Claimant's motion papers include, inter alia, an accident report indicating that on June 23, 1999, claimant's sister, Jennifer Kyle, was also involved in a motor vehicle accident at the same location (Claimant's Ex. C). The motion papers also include newspaper articles dated July 16, 1999 and January 19, 2000, addressing the traffic dangers at the accident location (Claimant's Ex. F).

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the aforenoted six factors. Claimant's attorney fails to offer any excuse for his nearly one year delay in seeking to file a late claim (see, Nicometti v State of New York, 144 AD2d 1036 [delay was inexcusable and prejudiced the State because they had not investigated the accident]). Claimant's Supporting Affidavit states that her brother's claim and her proposed claim contain the same allegations and causes of action against the same defendants (Claimant's Supporting Affidavit, ¶ 8). Nonetheless, despite the fact that, on August 19, 1999, claimant had retained the same attorney who had, on June 30, 1999, served a Notice of Intention regarding the brother's claim, the attorney failed to serve a Notice of Intention or a claim on behalf of claimant. Notably, when claimant's attorney received the letter dated August 13, 1999 regarding the brother's claim, the attorney could have, at that time, timely served a Notice of Intention or a claim on behalf of claimant.

Claimant, incorrectly argues that the newspapers, which postdate claimant's accident, give defendants notice of the essential facts of her claim. Similarly, the accident reports of claimant's siblings do not establish that defendants were notified of the alleged dangerous condition (see, Bommarito v State of New York, 35 AD2d 458 [claimant seeking permission to file a late claim failed to show that the State or its appropriate department had actual knowledge of the essential facts constituting the claim]). Additionally, defendants would be substantially prejudiced by a granting of claimant's application a year after the claimant's accident and given that claimant's attorney represents that the traffic control device at the accident location has since been changed (Attorney's Supporting Affidavit, ¶¶ 9, 12; see, Maurantonio v State of New York, 266 AD2d 290 [eight month delay in bringing late claim application substantially prejudiced the State]; Malek v State of New York, 92 AD2d 659 [late claim application made 16 months after accident and after road construction had been completed and equipment had been removed denied State opportunity to investigate and substantially prejudiced State]).

Most significant, is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Claimant's accident report indicates that the cause of her accident was her inattention (Claimant's Ex. B). The accident report also notes that claimant stated, "She did not see veh #1 as she turned left, causing both vehicles to collide." Significantly absent from claimant's motion papers is anything of any probative value indicating that defendant's alleged negligence was a proximate cause of claimant's accident (see, Pagano v New York State Thruway Auth., 235 AD2d 409 [claimants did not submit evidence that roadway was not designed or maintained in accordance with the applicable construction standards and thus failed to establish appearance of merit]). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious claim of action" (Witko v State of New York, 212 AD2d 889, 891). Claimant failed to establish the appearance of merit of her proposed claim (see, Matter of Gallagher v State of New York, 236 AD2d 400 [nine month delay caused State substantial prejudice and claimant did not establish appearance of merit]).

Finally, claimant has an alternative remedy against the driver of the other vehicle in the accident (see, Nicometti v State of New York, supra).

Accordingly, upon weighing all the factors, claimant's motion for leave to file a late claim is DENIED.


August 21, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims