New York State Court of Claims

New York State Court of Claims

LoTempio v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY, #2000-012-002, Claim No. 101159, Motion No. M-61058


Claimant, who had timely served and filed a claim against the State of New York, was granted permission to file a late claim against the New York State Thruway Authority, who is probably the proper party defendant.

Case Information

CHARLES J. LoTEMPIO III The court sua sponte amends the caption to conform to this decision.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court sua sponte amends the caption to conform to this decision.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John P. Lane
Claimant's attorney:
Kavinoky & Cook, LLPby: Joan M. Fildes, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney Generalby: Gregory Miller, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 22, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant's motion for permission to file a late claim against the New York State Thruway Authority:

Notice of Motion, Affidavit and Exhibits 1

Claim, Answer 2,3

The instant claim, in which only the State of New York was named as a defendant, was filed on September 30, 1999. Claimant alleges that he was injured on July 2, 1999, when his motorcycle struck a sunken manhole cover while he was "entering the I-190 North entrance ramp from Virginia Street in Buffalo," and that said manhole cover constituted a dangerous and unsafe condition. In its answer, filed on November 9, 1999, the State alleged that claimant had "failed to timely and properly serve the Defendant, New York State Thruway Authority *** [and that] the court lacks personal jurisdiction over the New York State Thruway Authority."

Realizing that he may not have brought his action against the proper party defendant, claimant now moves for permission to file a late claim against the Thruway Authority pursuant to Court of Claims Act §10(6). While claimant has not set forth a legally-cognizable excuse for his failure to initially perceive the proper party defendant, it is clear that the Thruway Authority had actual notice of this claim, and the opportunity to investigate, within the statutory 90-day period, by virtue of the timely service of the instant claim upon its counsel, the Attorney General, and that no prejudice would result from an order permitting late filing.

Although no papers were submitted in opposition to this motion, the Assistant Attorney General appeared at oral argument and stated that his office's investigation appeared to rule out the Thruway Authority as the responsible party, and he opposed the motion on the grounds of lack of merit to the proposed claim. It was interesting that, in drafting its answer to a claim that named only the State of New York as the defendant, and which contained no reference whatsoever to the Thruway Authority or the Thruway, defense counsel raised the defense that the court lacked jurisdiction over the Thruway Authority. Clearly indicative of the State's position that the Thruway Authority was responsible for the ramp in question[1], the assertion of this defense cannot be reconciled with counsel's current position that the proposed claim lacks merit because the Thruway Authority was not so responsible. Obviously, the situation with respect to this ramp is unclear, and the court finds that there is a sufficient appearance of merit to the contention that the Thruway Authority is the responsible party, at this point in the proceedings, so that claimant should be allowed to proceed at least to disclosure ( Santana v New York State Thruway Auth., 92 Misc 2d 1), without ruling out the possibility that a summary judgment motion may be warranted subsequent to the conclusion of sufficient disclosure proceedings.

Accordingly, the motion is granted. In the interest of judicial economy, claimant is directed to prepare an amended claim, naming the State of New York and the New York State Thruway Authority as defendants, and incorporating the allegations of the filed claim and the proposed claim, with separate causes of action against each defendant. Such amended claim shall be served (by regular mail upon the Attorney General, who has appeared in this action on behalf of the State of New York, and by personal delivery or certified mail, return receipt requested upon the New York State Thruway Authority) and filed within 30 days of the filed stamp date of this order.

February 22, 2000
Buffalo, New York

Judge of the Court of Claims

[1]This defense also supports the conclusion that the Thruway Authority would not be prejudiced by late filing, since the filed answer assumed that it was already a defendant.