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
: 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
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
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'
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.