New York State Court of Claims

New York State Court of Claims

CARO v. THE STATE OF NEW YORK, #2000-014-513, Claim No. None, Motion No. M-61700


Synopsis


Application for permission to file a late claim involving an automobile accident is denied due to the failure to provide support for the allegation that the claimants sustained serious physical injury.

Case Information

UID:
2000-014-513
Claimant(s):
DIANE CARO and HELEN TATZEL
Claimant short name:
CARO
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-61700
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Sanders, Sanders, Block & Woycik, P.C.By: Barbara E. Manes
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 8, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on claimants' 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, affidavits by claimants; Affirmation in Opposition; Affirmation in Reply.

The claimants seek permission to file a late claim in connection with an automobile accident which occurred on November 27, 1999. It is alleged in the proposed claim (incorrectly denominated "Notice of Claim") that the claimants were in an automobile which was struck by an automobile owned by the State. In their affidavits, the claimants allege that the vehicle in which claimant Caro was the driver and claimant Tatzel was a passenger, was stopped in traffic, when it was struck by four vehicles, the last of which was owned by the State of New York.

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.

According to claimants' counsel the delay in filing the claim was caused by errors in counsel's office; the delay in filing the claim was not excusable. 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.

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, 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. Indeed, the claimants' have submitted correspondence dated December 14, 1999 from the "claims administrators for the State of New York Fleet" which acknowledges receipt of a letter from claimants' counsel to the New York State Office of General Services, advising of their representation of claimant Caro in connection with the incident.

The claimants have not demonstrated that the proposed claim appears to be meritorious. Although the proposed claim, and supporting affidavits, could otherwise satisfy this requirement, the claimants' submission does not include any substantiation for the allegations that they sustained serious injury (Insurance Law §§ 5102[d], 5104). While it may not be necessary to fully determine this threshold issue at this stage, in the absence of any evidence whatsoever of serious injury, the proposed claim cannot be said to be meritorious. See, Edwards v State of New York, 119 Misc 2d 355; cf., Ferster v State of New York, 129 Misc 2d 333. The claimants may have a meritorious claim; they have not, on this submission, demonstrated that they do.

It appears that the claimants may have another available remedy, against the owners and drivers of the other three vehicles.

Having considered the relevant statutory factors, Bay Terrace, supra, the application is denied without prejudice to renewal upon proper papers, due to the failure to demonstrate that the claim appears meritorious, which weighs heavily against granting permission to file a late claim. McCarthy v New York State Canal Corporation, 244 AD2d 57, lv denied, 92 NY2d 815; Klingler v State of New York, 213 AD2d 378; Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729.


June 8, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims