Reply Affirmation, with Exhibit 4
In the proposed claim submitted with this application (see Exhibit 1 to Items
1,2), claimant seeks to recover for property damage to a truck owned by
claimant's subrogor, W.F. Saunders & Sons, Inc. This truck sustained
damages on April 25, 2000, at Fillmore Glen State Park in Moravia. On that
date, the truck was delivering stone to a location in the park, and was passing
over a wooden bridge within the park when the bridge collapsed, resulting in
damage to the vehicle.
A representative of the claimant served a "Notice of Claim" upon the Attorney
General by certified mail, return receipt requested, which was received by the
Attorney General on July 24, 2000. A copy of this "Notice of Claim" was also
served on the New York State Parks Department by certified mail, return receipt
requested, received by the Parks Department on July 21, 2000 (see Exhibit 2 to
Items 1,2). Although an Answer was interposed by defendant (see Exhibit 3 to
Items 1,2), this document purporting to be a "Notice of Claim" was never filed
with the Clerk of the Court of Claims, and hence there is no active claim in
this Court pertaining to this incident.
Claimant now seeks permission to serve and file a late claim.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
Claimant has not proffered any explanation as to why this claim was not timely
served and filed, except that claimant's representative was unfamiliar with the
procedural requirements of the CPLR and Court of Claims Act. Ignorance of the
law, in this case the service and filing requirements of the Court of Claims
Act, is not a reasonable or acceptable excuse (Modern Transfer Co. v State of
New York, 37 AD2d 756). Claimant has therefore not established a legally
sufficient excuse for failure to properly and timely serve the claim.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. As set forth above, the incident forming the basis
of this claim occurred on April 25, 2000. As established by the papers
submitted with this motion, a "Notice of Claim" was received by the Attorney
General on July 24, 2000, and by the New York State Parks Department on July 21,
2000. This "Notice of Claim" (see Exhibit 1 to Items 1,2) sets forth the date,
location, and particulars of the accident which occurred at Fillmore Glen State
Park. Defendant, therefore, clearly had notice of the facts upon which this
claim is based within 90 days from the date of occurrence. Defendant was thus
presented with an opportunity to investigate the facts surrounding this incident
within the statutory time frame set forth in Court of Claims Act, § 10(3),
and as a result, defendant cannot claim prejudice if the Court allows a claim to
be served and filed at this point in time.
In order to establish a meritorious cause of action, claimant has the burden to
show that the proposed claim is not patently groundless, frivolous, or legally
defective, and that there is reasonable cause to believe that a valid claim
exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d
1). This proposed claim is based upon the alleged negligence of a State
employee directing the vehicle operator to drive over the wooden bridge, which
collapsed under the weight of the vehicle, causing the property damage to the
Defendant contends that the operator of the truck, with a reasonable use of his
senses, should have realized that the wooden bridge was insufficient to
withstand the weight of his vehicle, and that he should have therefore selected
an alternate route within the park to deliver his load. Such an argument,
however, is better directed to the issue of comparative negligence, and not to
the issue of whether claimant has asserted a meritorious claim. Based upon the
allegations set forth in the proposed claim, for purposes of this application
claimant has alleged a meritorious claim.
It does not appear that claimant has any other available remedy.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979) and none of the factors can require denial as a matter of law.
Upon weighing and considering all of the factors set forth herein, and viewing
all of the factors set forth in Court of Claims Act, Section 10(6), it is the
opinion of this Court that claimant should be allowed to file its proposed
Accordingly, it is
ORDERED, that Motion No. M-62624 is hereby GRANTED, and claimant is directed to
serve its claim upon the Attorney General and to file the claim with the Chief
Clerk of the Court of Claims within 45 days from the date of filing of this
decision and order in the Clerk's office, with such service and filing to be in
accordance with the Court of Claims Act and the Uniform Rules for the Court of