New York State Court of Claims

New York State Court of Claims

NOTARFRANCESCO v. THE STATE OF NEW YORK, #2001-010-022, Claim No. NONE, Motion No. M-62649


Synopsis


Claimants' application for leave to file a late claim is denied.

Case Information

UID:
2001-010-022
Claimant(s):
JOHN NOTARFRANCESCO, CATHERINE M. NOTARFRANCESCO, CLAIRE E. NOTARFRANCESCO, Infants by their Mother and Natural Guardian, MARY ELLEN O'CONNOR, MARY ELLEN O'CONNOR Individually, and ALBERT NOTARFRANCESCO, Her Husband The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
NOTARFRANCESCO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-62649
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
DANIEL A. O'CONNOR. ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 13, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-3 were read and considered by the Court on claimants' application for leave to file a late claim:
Notice of Motion, Claimant's Supporting Affirmation, Proposed Claim.................1

Attorney's Opposing Affirmation.............................................................................2

Attorney's Reply Affirmation and Exhibit...............................................................3

The proposed claim alleges that on June 6, 2000, claimant, Mary Ellen O'Connor, was pregnant with claimants, Catherine M. and Claire E. Notarfrancesco, and accompanied by her infant son, John Notarfrancesco, while she was driving in the City of Mount Vernon. O'Connor's vehicle was allegedly struck in the rear by a State vehicle driven by Monica A. Davidson, causing personal injuries to O'Connor and John. The twins were one month premature and damages to them have not been fully determined. Albert Notarfrancesco, O'Connor's husband claims loss of companionship and consortium of his wife and psychological trauma regarding the twins' survival and injuries.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the aforenoted six factors. Claimants' purported excuse for failure to timely serve and file a claim is that O'Connor was hospitalized and convalescing and did not learn that the State was involved in the accident until O'Connor received a copy of the accident report. Notably, the date of receipt is not specified nor do claimants explain why an attorney could not have been contacted by telephone. Accordingly, claimants do not have a valid excuse (see, Goldstein v State of New York, 75 AD2d 613 [alleged incapacity due to hospitalization or convalescing is not a valid excuse without physicians affidavit or hospital records]; Malek v State of New York, 92 AD2d 659 [despite physician's letter stating that claimant was disabled for 90 days after accident, the Court held that there was no reasonable excuse because no explanation was offered as to why claimant could not have contacted an attorney by telephone]). Additionally, the State would be substantially prejudiced by a granting of claimants' application more than eight months after the date of the accident (see, Maurantonio v State of New York, 266 AD2d 290 [eight month delay unreasonable]; Nicometti v State of New York, 144 AD2d 1036 [delay was inexcusable and prejudiced the State because they had not investigated the accident]).

Most significantly, claimant has failed to demonstrate the appearance of merit of the proposed claim (see, Qing Liu v City Univ. of N. Y., 262 AD2d 473). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In a negligence action arising out of a motor vehicle accident, claimant must establish a "Serious injury" or loss greater than "Basic economic loss" under Insurance Law §5104; §5102(d); §5102(a) (see, McGovern v Martin, 122 AD2d 333). Here, even the most liberal reading of claimants' papers does not establish the appearance of merit of the claim. Claimants have failed to submit anything other than O'Connor's own self-serving statements. Significantly absent is an accident report, any witnesses's statements, a hospital report, and any evidence of a serious physical injury or loss greater than basic economic loss (see, Matter of Gallagher v State of New York, 236 AD2d 400 [nine month delay caused State substantial prejudice and claimant did not establish appearance of merit merely by submitting a photograph of the accident site]; Klingler v State of New York, 213 AD2d 378 [claimants' unsupported opinion does not suffice to establish merit of their claim]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness' statement]). Additionally, claimants have another available remedy against the driver individually.[1]

Accordingly, upon weighing all the factors, claimants' motion for leave to file a late claim is DENIED.


March 13, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] This Court does not have jurisdiction to hear a claim against Monica A. Davidson, individually.