New York State Court of Claims

New York State Court of Claims

BARBOSA v. THE STATE OF NEW YORK, #2000-016-109, Claim No. None, Motion No. M-62320


Late claim motion was granted. Claimants asserted that their car hit a "disabled" car which had been in a previous action because defendant failed to secure the area of the previous accident site.

Case Information

JAMES J. BARBOSA and DOROTHY BARBOSA The caption has been amended to reflect that the sole proper defendant in this case is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant in this case is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
David R. Lewis, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, AAG
Third-party defendant's attorney:

Signature date:
January 3, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of James J. Barbosa and Dorothy Barbosa for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In the proposed claim, it is asserted that on January 3, 1999, on the Southern State Parkway in Nassau County, claimants' vehicle struck a disabled vehicle present in the left lane, which had been involved in an earlier accident. A state trooper was at the site, having responded to the previous accident. Claimants argue that defendant was negligent in failing to remove or warn of the disabled vehicle. 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 three factors -- whether the state had notice of the essential facts, had an opportunity to investigate and 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, claimants' motion was made almost two years after the accident, the conditions of which were obviously transitory. However, a state trooper was present at the time of the accident and prepared a police report. See Exhibit A to the September 1, 2000 affirmation of David R. Lewis. A police report is presumably available as to the previous accident as well. On balance, claimants satisfy these three factors of the Act.

With respect to the next element of §10.6, the availability of an alternative remedy, claimants acknowledge that they have already commenced an action in Supreme Court against the owner of the disabled vehicle, who has impleaded the owner of the other vehicle involved in the previous accident. As to excuse, claimants indicate that their previous lawyers failed to pursue a claim against the state, which does not satisfy the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997).

The final factor to be considered is the merit of the claim. In this case, it appears undisputed that an accident occurred. James Barbosa states that he suffered fractures of his leg which required two surgeries and that his wife sustained a fractured rib and a laceration to the face requiring sutures. As to defendant's potential liability, although the trooper wrote in a police report that the disabled vehicle had its hazard lights on at the time of claimants' accident, claimants contend that the lights were not in fact on. They also maintain that defendant was negligent in failing to either remove the vehicle or place cones, lights, flares, or other warning devices by it. Neither party has provided any indication as to the timing of the previous accident

-- whether it has just occurred, or whether there would have been time to remove the disabled vehicle or warn of it. See, on apparently analogous police activity, Ritter v State of New York, 74 Misc2d 80, 344 NYS2d 257 (Ct Cl 1972). In any event, the proposed claim meets the standard set out in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (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."

Accordingly, having reviewed the parties' submissions,[2] IT IS ORDERED that motion no. M-62320 be granted and that within sixty (60) days of the filing of this order, claimants shall serve and file their claim in accordance with §§11 and 11-a of the Court of Claims Act.

January 3, 2001
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: claimants' notice of motion with the affidavit of James J. Barbosa and Exhibits A-B; defendant's affirmation in opposition; and claimants' reply affirmation.