New York State Court of Claims

New York State Court of Claims

ALLSTATE v. THE STATE OF NEW YORK, #2001-010-082, Claim No. NONE, Motion No. M-64096


Synopsis


Claimant's late claim application is granted.

Case Information

UID:
2001-010-082
Claimant(s):
ALLSTATE INSURANCE COMPANY as subrogee of Norma D. Arroyo
Claimant short name:
ALLSTATE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-64096
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
LAW OFFICES OF ROBERT G. MAZEAUBy: James J. Bonicos, 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:
January 25, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's late claim application:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits..........................1

Defendant's Affirmation in Opposition....................................................................2

Claimant seeks leave to file a late claim[1] alleging that on January 20, 2001, claimant's subrogee was on the shoulder of the New England Thruway in New Rochelle, when her vehicle was struck by defendant's vehicle as it left the roadway and entered the shoulder (Ex. G); claimant's subrogee's vehicle was pushed into a fence by defendant's vehicle. The proposed claim seeks $2,552.81 for the property damage to the vehicle. Claimant submits an Accident Report (Ex. A); a repair estimate (Ex. B); and a letter from defendant's Claims Administrator dated March 20, 2001 stating, "[w]e have completed our investigation" (Ex. C). The Claims Administrator did not recommend payment on the claim because:
[t]he state operator states that while his vehicle was pulled off to the right side of the roadway your vehicle pulled up and stopped behind the state vehicle. When the state vehicle started up again and began moving into the right lane to enter traffic, you also started up your vehicle and attempted to pass the state vehicle on the right, striking the state vehicle in the right front fender. In view of this we cannot make a recommendation to the State of New York to pay this claim

(Ex. C, F).
Claimant's Late Claim Application
Court of Claims Act § 10(6) requires that the Court consider, among other relevant factors: (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).

Claimant offers no excuse for the delay; however, the presence or absence of any one factor is not determinative (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra). Defendant is not significantly prejudiced because it conducted a timely investigation of the claim. Most significantly, claimant has shown the claim's appearance of merit. Also, claimant may not have another available remedy.

Upon consideration of all the relevant factors, the Court GRANTS claimant's motion for leave to file and serve a late claim in compliance with the provisions of the Court of Claims Act, within 30 days of receipt of a filed copy of this Decision and Order.

It is noted that the Court's conclusion with regard to the appearance of merit is limited to this Decision and Order; a greater burden of proof rests upon claimant to prevail at trial.

January 25, 2002
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] Alternatively, claimant seeks to have two letters, Ex. C (a letter dated March 20, 2001 from defendant's claim handler) and Ex. D (a letter dated July 19, 2001 from Allstate), treated as a Notice of Intention; that branch of claimant's application is DENIED.