This is the motion of Brian Weinstein 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 accident in which a state-owned vehicle collided with
Weinstein's vehicle in Staten Island. 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
: 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, claimant asserts that
within a week of the accident, the state's insurance company was contacted and
settlement discussions were commenced. See ¶9 of the June 28, 2000
affirmation of Mary Margaret Looby (the "Looby Aff.") and Exhibit 2 thereto.
Defendant argues that the insurance company is not an agency of the state, but
is rather an independent contractor. In any event, a claim was served on the
Attorney General on June 20, 2000 – 106 days after the accident, and thus
16 days after the permissible period for service ended. See ¶¶9 and
11 of the Looby Aff. In addition, a police report was made concerning the
accident. See Exhibit 1 to the Looby Aff. On balance, claimant satisfies the
notice-opportunity-investigation factors of the Act.
As to an alternate remedy, claimant states that he has no recourse other than
against the state, which defendant has not disputed. As to excuse, claimant
asserts that he was not immediately aware that the vehicle was state-owned.
However, a letter written to claimant one week after the accident from Sedgwick
Claims Management Services, Inc. advises that Sedgwick is the insurer for the
state. In any event, misapprehension as to which governmental entity is the
proper defendant does not excuse late filing. See, e.g.,
Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d
759 (2d Dept 1997).
Finally, while merit is one of six factors, "it would be futile to permit the
filing of a legally deficient claim." Prusack v State of New York, 117
AD2d 729, 730, 498 NYS2d 455, 456 (2d Dept 1986). Under the No-Fault Law, a
threshold showing of serious injury under §5102(d) of the Insurance Law
must be made. See Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 (1982).
Claimant's attorney states that claimant "sustain[ed] various personal injuries,
including but not limited to . . . cuts to the head and face and injuries to the
left eye requiring surgery. He has been treating as a result of these injuries
ever since." See ¶5 of the Looby Aff. However, there is no affidavit from
claimant or a physician as to his injuries. Aside from the attorney's
affidavit, the only independent evidence of claimant's injuries is a one page
"Explanation of Medical Bill Payment" which refers to a "laceration of eyelid,"
"open wound of nose" and "abnormal coagulation profile." The police report
lists claimant's injuries as "cuts to face." In short, claimant has failed to
make a threshold showing of serious injury under the Insurance Law and I cannot
find that he has satisfied the merit factor of the Act.
In view of the foregoing, having reviewed the parties'
, IT IS ORDERED that motion no.
M-62009 is denied.