New York State Court of Claims

New York State Court of Claims

OAKLEY v. THE STATE OF NEW YORK, #2001-015-184, Claim No. 94016, Motion Nos. M-63546, M-61131


Court granted motion for late claim relief in claim alleging defective design and maintenance of highway which allegedly precipitated motor vehicle accident in which claimant was injured. Factors weigh in favor of movant.

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):
M-63546, M-61131
Cross-motion number(s):

Claimant's attorney:
James J. Killerlane, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Vincent M. Cascio, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 26, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


By decision and order dated May 14, 2001 the Appellate Division, Second Department reversed the order of this Court dated April 7, 2000 and filed April 10, 2000 which had dismissed the claim and remitted the matter to this Court for consideration of an application for late claim relief dated December 6, 1996 which had never been docketed. This decision and order is addressed to the December 1996 late claim application which the Appellate Division directed this Court to consider as docketed nunc pro tunc. For the reasons which follow the late claim application is granted and the State's motion to dismiss the claim, restored to the calendar as a result of the Appellate Division's decision, is denied as moot. The instant proposed claim seeks to recover for personal injuries sustained by the claimant[1], a passenger in a motor vehicle driven by her daughter which was involved in an accident on Route 139 in Somers, County of Westchester, New York on July 22, 1994. The proposed claim alleges that the defendant negligently designed, built, maintained and repaired the roadway where the accident took place.

A notice of intention to file a claim was served by ordinary mail and received by the Attorney General on October 25, 1994, the 95th day following the accident. A claim was not served until April 26, 1996 or April 30, 1996[2] (date of the Attorney General's receipt) and was not filed with the Clerk of the Court until May 13, 1996. The State's answer to the claim asserted that the Court lacked jurisdiction due to both the method by which service of the notice of intention to file a claim (regular mail) was effected and the untimeliness of its service (receipt by the Attorney General's Office on October 25, 1994 , the 95th day after accrual). Following receipt of the answer claimants' attorney filed a motion dated July 30, 1996 seeking late claim relief pursuant to Court of Claims Act § 10 (6). That motion was deemed insufficient by the Chief Clerk of the Court who advised claimants' attorney of his determination by letter dated August 19, 1996. Claimants' attorney made a subsequent motion for late claim relief dated December 6, 1996 which was erroneously rejected by the Chief Clerk on the grounds that it did not contain a copy of the proposed claim when, in fact, a copy of the claim was attached. Claimants' counsel argued on the above referenced appeal to the Second Department that it never received the Chief Clerk's December 19, 1996 letter rejecting the motion as insufficient and asserted that he believed that a decision and order on the December 6, 1996 motion would ultimately be issued. Claimants' attorney never inquired as to the status of that action and, in the interim, the three year Statute of Limitations on claimants' personal injury claim expired on July 22, 1997 (see, CPLR § 214 (5)). The parties engaged in and concluded discovery, filed a note of issue and the Court scheduled the matter for trial on May 16, 2000.

On January 26, 2000 the State moved to dismiss the claim for lack of jurisdiction based upon the untimely and improper service of the notice of intention to file a claim on October 25, 1994 and claimants' failure to file a claim or to serve and file a notice of intention to file a claim within 90 days of the claim's accrual. This Court granted the State's motion without consideration of the December 6, 1996 motion for late claim relief and dismissed the claim for lack of jurisdiction on the grounds asserted. The Appellate Division, Second Department reversed this Court's April 7, 2000 decision and order dismissing the claim and remitted the matter for consideration of the December 1996 motion for late claim relief to which the Court's attention now turns. The Appellate Division cautioned the Court that consideration of the State's motion to dismiss, which had been previously granted, must abide the Court's consideration of the late claim motion.

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".

The 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 proposed claim asserts a cause of action for personal injury allegedly resulting from the State's negligence in designing, building, maintaining and repairing the roadway where the claimant's accident occurred. The Statute of Limitations for a personal injury action is three years (see, CPLR 214 (5)) and the December 6, 1996 motion seeking late claim relief, filed within three years of the claim's accrual on July 22, 1994, is timely.

As to the appearance of merit, the movant must only demonstrate that the proposed claim is not "patently groundless, frivolous or legally defective" and "there is reasonable cause to believe a valid cause of action does exist" (Rosenhack v State of New York, 112 Misc 2d 967, 969, 970). In the Court's view, movant has met that burden. In determining whether the claim "appears to be meritorious" it is not necessary to address the competing contentions of the parties' engineering experts as might be required on a motion for summary judgment.

The excuse advanced for movants' failure to timely serve and file a claim, claimant Judith Oakley's alleged physical incapacity, is not a valid excuse. The copy of the notice of intention to file a claim attached to the motion as exhibit B appears to have been executed by Judith Oakley on October 12, 1994 although claimant's attorney alleges at paragraph "12" of his affirmation in support of the motion that she was unable to sign a notice of intention until approximately October 17, 1994. In either event claimant executed the notice of intention within 90 days of the claim's accrual and physical incapacity must be rejected as an excuse for the delay (cf., Wolf v State of New York, 140 AD2d 692). The delay in serving the notice appears to this Court to be attributable either to law office failure or lack of knowledge of the law (see, Griffin v John Jay College, 266 AD2d 16; Nyberg v State of New York, 154 Misc 2d 199). This factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Claimants herein allege that the State had notice in that the State Police investigated the accident and that despite lack of proper and timely service of the notice of intention to file a claim the State became aware of this claim within 95 days of its accrual. First, the knowledge of the investigating State Trooper will not be attributed to the State (Santana v New York State Thruway Auth., 92 Misc 2d 1). Secondly it does not appear that the defendant became aware of its potential liability for the accident within 90 days of accrual (see, Walach v State of New York, 91 Misc 2d 167). The notice factor, therefore, weighs against granting the motion.

As to the opportunity to investigate, the history of this action demonstrates that following the service of the notice of intention, flawed though such service was, the State not only had an opportunity to investigate the claim but did so. This factor weighs in favor of granting the motion. On the issue of prejudice resulting from claimants' delay, the Attorney General argues in opposition to the motion that prejudice has resulted from the delay in bringing this matter to trial and even suggests that defense witnesses may not be available. This allegation is, however, not supported by any factual averments but by conclusory assertions. Likewise, defendant's attorney has made no factual showing that conditions at the accident scene have changed since July 1994. Absent such proof the Court is not convinced that prejudice exists and, accordingly, this factor weighs in favor of granting the motion.

As to the final factor, it does not appear that movant has any other available remedy and this factor favors granting the motion.

Upon consideration of all the statutory factors this Court concludes that late claim relief should be granted. The granting of this motion renders moot the State's motion to dismiss the claim as jurisdictionally defective. A telephone conference will be scheduled within thirty days following the date of the filing of this decision and order.

September 26, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 6, 1996;
  2. Affirmation of James J. Killerlane dated December 6, 1996, with exhibits;
  3. Affidavit of Judith Oakley sworn to July 30, 1996;
  4. Affidavit of Adam Stein, M.D. sworn to July 9, 1996;
  5. Affirmation of Vincent M. Cascio dated June 29, 2001, with exhibits.

[1]Claimant Spencer Oakley's claim is derivative only. References contained herein to the claimant in the singular refer to Judith Oakley.
[2]The claim attached to defendant's opposing papers as Exhibit C bears two date stamps which indicate receipt by the West Regional Office of the Attorney General on April 26, 1996 and by the New York State Department of Law Claims Bureau on April 30, 1996 (Defendant's Exhibit C). The affirmation of Assistant Attorney General Vincent Cascio erroneously refers to the Attorney General's receipt as occurring on May 13, 1996 (see, paragraph #5).