New York State Court of Claims

New York State Court of Claims

MARKEL INSURANCE v. THE STATE OF NEW YORK, #2000-019-540, Claim No. NONE, Motion No. M-62579


Claimant's motion for permission to late file property damage claim is granted.

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):

Claimant's attorney:
SMITH, SOVIK, KENDRICK & SUGNET, P.C.BY: Theresa N. McCorry, Esq., of counsel
Defendant's attorney:
BY: John J. Nowak, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 24, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6).

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-62579, dated and filed October 12, 2000.
  2. Affidavit of Theresa N. McCorry, Esq., in support of motion, sworn to October 12, 2000, with attached exhibits.
  3. Proposed Amended Claim, dated October 12, 2000.
  4. Memorandum of Law, in support of motion, dated October 12, 2000.
  5. Affirmation of John J. Nowak, AAG, in opposition to motion, dated October 30, 2000, and filed November 13, 2000, with attached exhibits.
The proposed claim is a subrogation claim for property damage in the amount of $40,064.17 arising out of an accident between two trucks which occurred on State Route 17 westbound, 1.5 miles east of Exit 67 in the Town of Union, at approximately 11:00 a.m. on October 15, 1997. Rockton Transport, o/b Rockton Leasing, Ltd., (hereinafter "Rockton") owned a tractor trailer being operated by its employee, James A. Butler. The Rockton vehicle was traveling behind a John Deere front end loader owned by the State of New York (hereinafter "State") and operated by its employee, William R. Schubmehl. The parties disagree as to the underlying facts, but agree that the Rockton-Butler vehicle hit the rear of the State-Schubmehl vehicle resulting in damage to both vehicles. (Proposed Verified Claim, ¶ 13). While the State's claim against Rockton is being pursued in supreme court, Rockton seeks to recover for its own property damages in this forum.[1]

As a threshold issue, the Court notes that it has jurisdiction to review and determine this motion since it was filed within three years from the date this claim accrued. (CPLR 214).

The factors that the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,
5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State, and

6. there is any other available remedy.

Claimant offers no reason for its nearly three-year delay in requesting permission to file a late claim. This factor weighs against Claimant.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. Claimant contends the State obtained actual knowledge of the essential facts from two sources: (1) the direct involvement of a State employee in the accident; and (2) numerous correspondence exchanged between the parties after the accident. It is well-settled that direct involvement of a State employee in an accident does not, standing alone, qualify as notice when "[t]he claimed knowledge is that of the alleged tortfeasor, and not that of a person possessing the supervisory authority to initiate an investigation into the claim [citations omitted]." (Witko v State of New York, 212 AD2d 889, 890; Avila v State of New York, 131 Misc 2d 449, 450). There is no allegation Mr. Schubmehl possessed such authority. However, Claimant also submits various letters exchanged between the parties following this accident.[2] A letter dated November 26, 1997, sent from a Rockton investigator to the State's "Transportation Maintenance" advised that Rockton is "[h]olding the New York State Department of Transportation liable for this incident...." (Affidavit of Theresa N. McCorry, Esq., Exhibit C). A letter dated December 2, 1997 from the Claims Administrator of the State Office of General Services indicated that the "claim" was being forwarded to "DOT headquarters claim unit for a response and further handling." (Affidavit of Theresa N. McCorry, Esq., Exhibit C). Finally, a letter dated December 11, 1997 to the Department of Transportation refers to a telephone conversation of December 2, 1997 confirming the State's representation that it was in the process of "[e]ndeavouring [sic] to contact [Mr. Schubmehl] to obtain his statement to confirm the details of the loss." (Affidavit of Theresa N. McCorry, Esq., Exhibit C).

Consequently, the direct involvement of a State employee, together with these correspondences is overwhelming evidence that the State had actual notice of this accident at a supervisory level and an opportunity to investigate within 90 days following the accident. (Wolf v State of New York, 140 AD2d 692). Moreover, the State has not demonstrated prejudice due to the delay in filing by arguing that it cannot now prepare and proceed to trial, nor does it argue that the delay in filing has generated an unfair advantage to the Claimant. As such, the Court finds these three factors weigh in Claimant's favor.

Whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, Claimant must show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe a valid claim exists. (Matter of Santana v New York State Thruway Auth., supra, at 11). While this standard clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case. (Matter of Santana v New York State Thruway Auth., supra, at 11-12). The State objects to Claimant's failure to submit a supporting affidavit from Mr. Schubmehl and argues that any factual allegations asserted by counsel are without foundation in the record. By the same token, however, the State has failed to submit an affidavit from anyone with first hand knowledge of the accident. Thus, the Court is left with dueling attorney affirmations, a police report, photographs, and partial discovery from the pending supreme court action. From this record, the only conclusion this Court can draw for certain is that the parties have sharply divergent views as to the cause of this accident and the interpretation of the evidence. All these factual disputes including, among other things, the speed of the vehicles; whether the State-Schubmehl vehicle was traveling in the driving lane or on the shoulder; the adequacy of warning lights and/or signs; the condition of the roadway are the very factual determinations best left for a trial. In short, if Claimant's version of the facts is true then a valid cause of action exists. The Court finds that Claimant has established the proposed claim appears meritorious within the meaning of CCA 10 (6). (Marcus v State of New York, 172 AD2d 724).

Finally, the Court agrees that there is no alternative remedy available to Claimant. This factor weighs in Claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that five of the six factors, including the all-important factor of merit, weigh in Claimant's favor.

Accordingly, for the reasons stated above, IT IS ORDERED, that Claimant's Motion No. M-62579 for permission to permit the late filing and service of a claim is GRANTED. Claimant shall file a claim and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Order in the Chief Clerk's Office of this Court. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court.

November 24, 2000
Binghamton, New York

Judge of the Court of Claims

The State commenced an action against Rockton to recover for the property damage to its own vehicle. (State of New York v James A. Butler, and Rockton Transport, o/b Rockton Leasing, Ltd., Index No. L-00036-00; [Albany County]).
Initially, the Court notes it is only concerned with the letters dated November 26, 1997; December 2, 1997; December 11, 1997 that fall within the initial 90 day statutory period following the accident. (Matter of Crawford v. City Univ. of N.Y., 131 Misc 2d 1013, 1016). As such, any subsequent letters and the State's commencement of a claim in early 2000 do not relate to the issue of notice during the appropriate time period.