New York State Court of Claims

New York State Court of Claims

WEINSTEIN v. THE STATE OF NEW YORK, #2000-016-075, Claim No. None, Motion No. M-62009


Auto accident late claim motion denied - no serious injury.

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:
Gravante, Gravante & LoobyBy: Mary Margaret Looby, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
September 26, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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[1]: 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' submissions[2], IT IS ORDERED that motion no. M-62009 is denied.

September 26, 2000
New York, New York

Judge of the Court of Claims

[1] 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. [2]The following were reviewed: claimant's notice of motion with affirmation in support and Exhibits 1-4; and defendant's affirmation in opposition with Exhibit A.