New York State Court of Claims

New York State Court of Claims

KIM v. THE STATE OF NEW YORK, #2000-014-505, Claim No. None, Motion No. M-61286


Motion for permission to file a late claim granted.

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):

S. Michael Nadel
Claimant's attorney:
Manoussos & Associates, P.C.By: Michael Manoussos
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 5, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant's application for permission to file a late claim pursuant to Court of Claims Act §10(6): Notice of Motion, Affirmation in Support and Exhibits annexed; Affirmation in Opposition and Exhibits annexed; Reply Affirmation.

The claimant seeks permission to file a late claim[1] in connection with injuries sustained as a result of an automobile accident, which, it is alleged, was caused by the State's negligent maintenance of the Van Wyck Expressway near its intersection with Jewel Avenue, in Queens County. In particular, it is alleged that while driving a van on April 19, 1998, "a deep and large depression in the roadway" caused the claimant's van "to bottom out and violently bounce high." Claimant's Affidavit, ¶3 (Exhibit B to claimant's submission).

Although the 90-day period to serve and file a claim or to serve a notice of intention has lapsed, Court of Claims Act §10(3), this application was filed within the relevant statute of limitation so the Court has jurisdiction to grant relief under §10(6), and has considered the factors listed therein. See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981.

It is the State's position that the proposed claim does not appear to be meritorious, because "responsibility for the maintenance of the accident site rests solely with the City of New York." Paragraph 6, Affirmation in Opposition. In support, the affidavit of Osama Khalil, Claims Engineer in the New York State Department of Transportation, states that while the location of the accident was designed and constructed by the State, pursuant to New York State Department of Public Works Official Order No. 1004, dated November 30, 1964, jurisdiction of the site was transferred to the City of New York, in accordance with the provisions of §349-c of the Highway Law, and that the City of New York is responsible for maintenance. Reference is made in the affidavit to "Maintenance Standards for Arterial Highways of the City - State Maintenance Agreement," a copy of which is attached to the affidavit.

Counsel for the claimant asserts that as a part of the State's arterial highway system, responsibility for maintenance of the accident site is shared by the State and the City. In support, he cites Nowlin v City of New York, 81 NY2d 81, in which the Court of Appeals stated that "a State arterial highway – meaning a highway running through a locality and connecting it to State highways – * * * by definition involves both the State and the locality." At 86. The Court went on to describe the respective roles of each:
Under article XII-B [of the Highway Law], the State is empowered to expend State or Federal funds for the purchase, design, construction or reconstruction of arterial routes running through cities (Highway Law §349-c [1], [5], [6]), and thereby attains ownership of such roads (Highway Law §349-d). Once State construction or reconstruction of an arterial highway is complete, however, the State must return "jurisdiction" of the roadway to the City (Highway Law §349-c [3.4]). Notwithstanding such return of jurisdiction article XII-B contemplates that the State retains continuing maintenance responsibility for State arterial highways it has constructed or reconstructed (Highway Law §349-c [7]-[9]).
, at 86-87. The Court noted the existence of "an ongoing maintenance agreement" under which the maintenance responsibilities retained by the State "as allowed by Highway Law §349-c (7)-(9) – were delegated to the City." Id., at 87. See, also, Gregorio v City of New York, 246 AD2d 275.

Indeed, annexed to claimant's submission, as Exhibits D and E, are documents demonstrating the State's involvement in work undertaken, by the City, on the Van Wyck Expressway subsequent to its construction. Among them is a letter from Mr. Khalil, dated June 23, 1999, in which he states: "The Van Wyck Expressway is part of the State Arterial System and usually maintained by the City of New York."

From the foregoing, it would appear that there is ample basis for the claimant to allege a cause of action against the State, and in this regard the claim does appear to be meritorious.

While the proposed claim does not adequately describe the "defective, dangerous, and unsafe condition" which is alleged to have caused the accident, or the manner in which the accident occurred, the description in the Claimant's Affidavit suffices to demonstrate the claim appears to be meritorious.

According to the affirmation of counsel, the delay in filing the claim was the result of counsel's erroneous belief that the roadway in question was under the exclusive jurisdiction of the City of New York, against which an action was commenced in Supreme Court. While ordinarily such would not excuse the delay (Matter of E.K. v State of New York, 235 AD2d 540, 541, lv to app den 89 NY2d 815; Sevillia v State of New York, 91 AD2d 792), consideration must be given to the fact that the State does not disagree with counsel's initial belief in this regard.

While the delay is lengthy -- almost two years from the date of the accident to the filing of this application -- given the foregoing discussion of the State's ongoing involvement with respect to the maintenance of the roadway in question, and in the absence of specific factual support of the State's opposition with respect to the statutory factors of notice, opportunity to investigate, and prejudice caused by the delay (¶¶ 10 and 11 of Affirmation in Opposition), those factors are presumed to weigh in the claimant's favor. See, Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024.

It appears that the claimant has another available remedy, which is being pursued, against the City of New York.

Having considered the relevant statutory factors, Bay Terrace, supra, the balance of factors weigh in claimant's favor. It is therefore,

ORDERED, that claimant's application for permission to file a late claim against the State of New York is granted; claimant shall file the proposed claim in the form in which it is annexed to claimant's submission as Exhibit A, except that it shall describe the condition alleged to have caused the accident, and the manner in which the accident is alleged to have occurred as set forth in Claimant's Affidavit (Exhibit B to claimant's submission), in accordance with the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the Attorney General, within 45 days of receipt of a filed copy of this order.

April 5, 2000
New York, New York

Judge of the Court of Claims

[1]The Court has treated claimant's request for "an Order granting leave to serve a Notice of Claim, nunc pro tunc," as has the Assistant Attorney General in her opposition, as an application for permission to file a late claim pursuant to Court of Claims Act §10(6).