New York State Court of Claims

New York State Court of Claims

STESSIN-COHN v. THE STATE OF NEW YORK, #2001-015-143, Claim No. None, Motion No. M-63017


Pedestrian's motion for late claim relief on claim for personal injury resulting from fall in pothole on alleged state highway denied due to lack of reasonable excuse for delay, lack of notice to the defendant and opportunity to investigate which resulted in obvious prejudice to the State for defect subject to weather conditions. Claimant also failed to allege location of defect with particularity.

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:
Kossover Law Offices, LLPBy: Andrew Kossover, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 25, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The application of movant for an order pursuant to Court of Claims Act § 10(6) permitting her to serve and file a late claim in the form of the proposed claim annexed as an exhibit to the motion papers is denied. This is a claim to recover for personal injuries allegedly sustained on July 5, 2000 when, in attempting to access her vehicle, movant stepped off a curb onto North Front Street in the Village of New Paltz, Ulster County, and was caused to trip and fall to the ground by reason of a dangerous and defective condition in the roadway, i.e., a pothole. As a result of her fall she sustained a serious injury for which she seeks the sum of $250,000.00 with interest. The movant alleges upon information and belief that the roadway was designed by and is maintained by the State of New York. Movant alleges in paragraph 6 of the proposed claim that the State was negligent in its maintenance of the roadway, in failing to adequately inspect and/or repair the roadway, and in failing to warn of the dangerous condition found thereon.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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, whether the claimant has any other available remedy".

This Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The first issue for resolution is whether the motion has been made within the time limitations set forth in article 2 of the CPLR. The proposed claim sounds in negligence which is governed by the three year Statute of Limitations set forth in CPLR 214 (5). The motion is therefore timely.

The excuse advanced for the failure to file and serve a claim or to serve a notice of intention within ninety days of the accrual of the claim is that movant believed the roadway was owned and maintained by the Village of New Paltz against which she had timely filed a notice of claim dated August 17, 2000 pursuant to General Municipal Law § 50 (e). It is well settled that the filing of a claim against the wrong party, believing such party to be the owner of a roadway, is not a reasonable excuse for a failure to timely file a claim (Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854; see also, Gatti v State of New York, 90 AD2d 840). Nor does ignorance of the law excuse a late filing (Matter of E.K. v State of New York,235 AD2d 540). Consequently movant has failed to put forth a valid excuse.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Timely notice to the Village of New Paltz is not notice to the State of New York (see, Erca, supra). Movant has offered no evidence that the defendant acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter. Despite counsel's assertion upon information and belief that the pothole has not been repaired or altered in any way since movant's accident on July 5, 2000, the ravages of time, traffic and the elements on the roadway surface during the 6 ½ months from the accident date to the filing of the motion cannot be ignored. It is not alleged that the defendant had an earlier opportunity to investigate the factual allegations underlying the proposed claim and the Court finds that the defendant would be substantially prejudiced in maintaining a defense (see, Matter of Maurantonio v State of New York, 266 AD2d 290). Moreover, the exact location of the alleged dangerous condition has not been stated with sufficient particularity (see, Cobin v State of New York, 234 AD2d 498). These factors weigh against the granting of the motion.

As to the issue of merit, all that the movant must establish is that the proposed claim has the appearance of merit in that "it is not patently groundless, frivolous, or legally defective and there is reason to believe that a valid cause of action exists" (Remley v State of New York, 174 Misc 2d 523, 524). The State has a duty to maintain its roadways in a reasonably safe condition for use by automobile traffic and pedestrians and a breach of that duty may give rise to liability upon a showing that the breach was a substantial factor in causing movant's accident (see, Lopes v Rostad, 45 NY2d 617). In the Court's view, movant has made the minimal showing required to establish the appearance of potential merit and this factor weighs in favor of the movant. As to the last factor, it would appear that further recourse against the Village of New Paltz may be available to the movant. All that has been alleged is that the Village's insurance carrier has advised movant's counsel, upon information and belief, that the roadway is owned and maintained by the State of New York. Such a contention does not require a finding that there exists no other available remedy.

A consideration of all of the factors, especially the lack of a reasonable excuse for the delay and lack of notice, opportunity to investigate and the resulting prejudice to defendant lead the Court to deny the motion.

April 25, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 23, 2001;
  2. Affirmation of Andrew Kossover dated January 23, 2001 with exhibits;
  3. Affirmation of Saul Aronson dated February 12, 2001;
  4. Affirmation of Andrew Kossover dated February 20, 2001.