New York State Court of Claims

New York State Court of Claims

ANDERSON v. THE NEW YORK STATE THRUWAY AUTHORITY, #2000-018-028, Claim No. NONE, Motion No. M-61658


Synopsis


Court denies motion for permission to file and serve late claim against New York State Thruway Authority. Defendant provided affidavit and other proof establishing New York State Thruway Authority did not own, install or maintain the snow fence which allegedly caused the accident.

Case Information

UID:
2000-018-028
Claimant(s):
MIKAEL ANDERSON and JEANA ANDERSON
Claimant short name:
ANDERSON
Footnote (claimant name) :

Defendant(s):
THE NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-61658
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
MICHAELS & SMOLAK, P.C.By: Michael G. Bersani, Esquire
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
OF THE STATE OF NEW YORK
By: Roger B. Williams, Esquire Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 31, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The Court has reviewed and considered the following papers on movants' application for


permission to file a late claim:


Notice of Motion..........................................................................................................1

Affidavit of Michael G. Bersani, Esquire in support with all exhibits attached thereto...............................................................................................................2

Affidavit of Mikael Anderson in support.....................................................................3


Affirmation of Roger B. Williams, Esq., Assistant Attorney General in

Opposition........................................................................................................4


Affidavit of Daniel Markis in opposition.....................................................................5


Department of Transportation Memorandum from D.W. Harp, Office of Legal

Affairs to R. C. Keating, Structures Subdivision, dated March 6, 1980...........6

Letter from C. H. Lang, Acting Chief Engineer to V. L. Ostrander, Superintendent

of the Division of Operation and Maintenance of the Department of Public

Works dated March 8, 1955..............................................................................7



Movant[1] brings this motion seeking permission to file a late claim as a result of injuries sustained on November 30, 1999, at 6:45 a.m., after snow fell onto his car windshield from the bridge above breaking his windshield. He and his spouse were driving in their vehicle on Interstate Route 90 in the Town of Elbridge, County of Onondaga, State of New York. Movant asserts that the New York State Thruway Authority was negligent in that it erected a simple wooden roll snow fence which was ineffective to prevent snow being plowed from spilling over onto the Interstate roadway below creating a serious hazard. Movant has served timely notice upon the Attorney General of his intention to commence another action in the Court of Claims against the State of New York and the New York State Transportation Department based upon the same incident. However, movant's counsel, upon investigation, determined that the snow fence may actually be owned and/or maintained by the State Thruway Authority and accordingly seeks to file and serve the proposed late claim against this entity.

Court of Claims Act §10(6) allows a movant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act §10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR. (Court of Claims Act §10(6).) Movant's motion is timely. (Court of Claims Act §10(6); CPLR §214(5).)

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative. (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965.) Instead it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

The first factor, is whether the delay in filing the claim is excusable. Movant's counsel asserts that the delay is excusable because there is a "reasonable excuse" for the delay. Specifically, he asserts that movant retained counsel shortly after the accident, and not wanting to file a frivolous lawsuit, an investigation was begun to determine who was responsible for the snow fence. Based upon the investigation it appeared that the State of New York was responsible; and thus, a timely claim was brought against the State by serving a notice of intention upon the Attorney General. (See, Bersani Affidavit, Exhibit B.) It was not until later that it was discovered that the New York State Thruway Authority may have been responsible for the snow fence. Although certainly counsel's actions are understandable, this is not an acceptable excuse. (See Erca v State of New York, 51 AD2d 611, 612.)

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. These factors weigh in favor of granting the application since movant's counsel timely served a notice of intention against the State of New York upon the Attorney General giving a detailed description of the incident and the allegations of liability. Although the State of New York and the State Thruway Authority are separate entities, counsel is the same for both, and prompt notice was given to the Attorney General, thereby providing an opportunity for investigation. Furthermore, it appears that movant's counsel obtained a copy of the accident report regarding this incident directly from the New York State Thruway Authority; thus it seems that the Authority also had notice of the occurrence.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists. (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11.) Defendant, in opposing this motion, makes a clear showing that in fact the New York State Thruway Authority does not own or have any responsibility for the maintenance or installation of the snow fence on the bridge where the incident occurred. (See, Williams Affirmation ¶3; Markis Affidavit and attachments.) An affidavit from Daniel Markis, Bridge Engineer for the Syracuse Division of the New York State Thruway Authority unequivocally states that the New York State Thruway Authority did not erect this particular snow fence and has no responsibility to maintain such snow fences. As a result, movant has not shown to the Court that the proposed claim against the Thruway Authority has merit.

The final factor is whether the movant has any other available remedy. Clearly, movant has another remedy, since there is already timely notice that movant will seek redress from the State of New York for his injuries.

Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court DENIES the movants' motion to permit the late filing and serving of the claim.


July 31, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]
All references to movant herein only refers to Mikael Anderson unless otherwise noted
.