New York State Court of Claims

New York State Court of Claims

GIARLETTA v. THE STATE OF NEW YORK, #2000-016-065, Claim No. None, Motion No. M-61522


Late claim motion involving auto accident on Staten Island Expressway.

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):

Alan C. Marin
Claimant's attorney:
Hodgson, Russ, Andrews, Woods & Goodyear, LLPBy: Benjamin M. Zuffranieri, Jr.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
August 24, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Trudy Giarletta, Robert Castellanos, Rudolph Micharoni, Sarah Micharoni and Luis Castellanos for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). The proposed claim arises from an automobile accident on the Staten Island Expressway. Trudy Giarletta was the driver and Rudolph Micharoni was the passenger in one of six automobiles involved in a chain-reaction accident.[1] Five of the automobiles, including the one driven by Giarletta, were allegedly stopped for construction work on the highway while the sixth, a tractor-trailer, allegedly failed to stop, starting the chain-reaction. The construction work was being done pursuant to a contract between the state and Tully Construction Co., Inc. Claimants assert that the accident occurred because of defendant's failure to provide adequate notice that construction work was taking place. In determining whether to grant this motion, the six factors enumerated in the Act must be considered. The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling[2]: whether (1) the defendant had notice of the essential facts constituting the claim; (2) the defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.

The first, second and third factors -- whether the state had notice of the essential facts, whether the state had an opportunity to investigate and whether the state would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, the accident occurred on August 31, 1999, almost one year ago. However, claimants assert that the construction project is ongoing, which defendant has not denied, having not addressed these three factors in its papers. In addition, as to documents, inter alia, there are three extant police reports which would allow defendant to investigate and prepare its defenses. On balance, claimants satisfy the notice-opportunity-prejudice factors of the Act.

As to the next factor, claimants would have alternate remedies, both against the other drivers involved in the accident and against Tully Construction Co., Inc.[3] The only excuse offered is that it was initially believed that the city rather than the state was the proper defendant. Misapprehension as to which governmental entity is the proper defendant does not excuse late filing. See, e.g., Erca v State of New York, 51 AD2d 611, 378 NYS2d 328 (3d Dept 1976), affd mem 42 NY2d 854, 397 NYS2d 631 (1977).

The final factor to be considered is the merit of the claim. Claimants' only theory of defendant's liability is their statement that the "State Department of [Transportation failed] to provide adequate notice to drivers . . . that construction work was taking place and that such construction would cause traffic to slow and/or stop." See ¶7 of the undated affirmation of Benjamin M. Zuffranieri, Jr. No details have been provided as to this alleged lack of notice; it is unclear whether claimants are complaining, e.g., of a lack of signs, the content of signs, a lack of personnel, or some other matter. Further undercutting claimants' theory is the fact that, according to claimants themselves, five of the six drivers involved in the accident had in fact stopped for the construction.

Even if claimants had stated some meritorious theory of state liability for the purposes of the Act, virtually no documentation has been submitted as to their injuries. In fact, Giarletta is the only claimant to have submitted an affidavit, in which she states that as a result of the collision, she has suffered back and neck injuries and incontinence for which her doctors recommend surgery. She also states that she has been left totally disabled.[4] However, she has submitted no physician's affidavit or medical records (or work records). As to Micharoni, the passenger in the car, nowhere in claimants' papers are his particular injuries even touched upon. As to the car, the proposed claim states that it was destroyed, but no documentation has been supplied.

Matter of Santana v NYS Thruway Authority
, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) sets out a standard to ascertain whether a claim appears meritorious: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." I cannot find that claimants have satisfied this standard.

In view of the foregoing, having reviewed the parties' submissions,[5] IT IS ORDERED that motion M-61522 is denied.

August 24, 2000
New York, New York
Judge of the Court of Claims

  1. [1]Robert Castellanos is Trudy Giarletta's husband; Sarah Micharoni is Rudolph Micharoni's wife; and Luis Castellanos is the owner of the vehicle. Defendant asserts that claimants have improperly consolidated their claims without authority of statute, order or stipulation. This issue need not be reached.
[2] See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  1. [3]The contract with Tully Construction Co., Inc. provides that Tully is responsible for traffic maintenance on the project, including the responsibility for marking with "signs, delineators, guiding devices and other methods that a person who has no knowledge of conditions may safely and with a minimum of discomfort and inconvenience ride, drive or walk, day or night, over all or any portion of the highway and/or structure under construction where traffic is to be maintained." See §619-1.02 of the standard specifications included in Exhibit B to the June 6, 2000 affirmation of Susan J. Pogoda.
  2. [4]The proposed claim states that "[a]mongst other injuries, claimants sustained multiple injuries to their entire persons including fractures of bones and ruptures of organs," but Giarletta makes no reference to any fractures or ruptures in her affidavit.
  3. [5]The following were reviewed: claimants' notice of motion, affirmation in support of Benjamin M. Zuffranieri, Jr. with Exhibits A-C, and affidavit in support of Trudy A. Giarletta with Exhibits A-C, Exhibit C being the proposed claim; and defendant's affirmation in opposition with Exhibits A-E.