New York State Court of Claims

New York State Court of Claims

BRONCATI v. THE STATE OF NEW YORK, #2000-010-065, Claim No. NONE, Motion No. M-62150


Synopsis


Claimants' application for leave to file a late claim is denied.

Case Information

UID:
2000-010-065
Claimant(s):
LUCRETIA BRONCATI AND LOUIS BRONCATI
Claimant short name:
BRONCATI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-62150
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
KENT, HAZZARD, JAEGER, WILSON, FAY & CONROYBy: James C. Freeman, 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:
October 2, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimants' application for leave to file a late claim:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

Attorney's Opposing Affirmation and Memorandum of Law..................................2

Attorney's Reply Affirmation...................................................................................3

The proposed claim alleges that on December 17, 1998, Lucretia Broncati slipped and fell on the sidewalk/curb adjacent to Route 119/Main Street, between Bank Street and Bronx Street in White Plains.[1] The claim alleges that the curb was at an improper height.

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 above six factors. Claimants' purported excuse that it "was not an easy undertaking" (Claimants' Reply Affirmation, ¶ 9) to ascertain that the State was the proper party defendant, is not acceptable for the nearly two year delay in seeking to file a late claim (see, Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854 [error in filing claim against wrong party was not excusable for delay]; Gatti v State of New York, 90 AD2d 840 [mistaken belief that town and not State owned the road was not reasonable excuse for delay]). Additionally, claimants' delay substantially prejudiced defendant because the State was not afforded the opportunity to timely investigate the circumstances underlying the 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]).

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). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891). Claimants did not submit a report, a witness statement, or a medical record establishing that defendant's alleged negligence was a proximate cause of the alleged 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]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness' statement]). Merely submitting a photograph of the alleged accident site does not establish the appearance of merit of the 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 merely by submitting a photograph of the accident site]). Additionally, claimants' unsupported self serving allegations are insufficient to establish the appearance of merit (see, Klingler v State of New York, 213 AD2d 378 [claimants' unsupported opinion does not suffice to establish merit of their claim]).

Finally, claimants have an alternative remedy against the entities which claimants are suing in Supreme Court, i.e., the City of White Plains, the Urban Renewal Agency of White Plains, Metro North and the County of Westchester (see, Nicometti v State of New York, supra).

Accordingly, upon weighing all the factors, claimants' motion for leave to file a late claim is DENIED (see, Qing Liu v City Univ. of N.Y., 262 AD2d 473).


October 2, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]
The claim of Louis Broncati, Lucretia's husband, is derivative.