New York State Court of Claims

New York State Court of Claims

CAVALLO v. THE STATE OF NEW YORK and NEW YORK STATE DEPARTMENT OF TRANSPORTATION, #2001-016-010, Claim No. None, Motion No. M-62732


Synopsis


Late claim motion was denied; claimant did not contest defendant's assertion in opposition papers that highway in question was city responsibility.

Case Information

UID:
2001-016-010
Claimant(s):
ANTHONY CAVALLO and MARY ANN CAVALLO
Claimant short name:
CAVALLO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-62732
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Panken, Besterman, Winer, Becker & Sherman, LLPBy: Adam C. Yanover, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
February 16, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is the motion of Anthony Cavallo and Mary Ann Cavallo for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act").[1] In the proposed claim, it is asserted that another vehicle crossed over and collided with claimant's vehicle on the Belt Parkway in Brooklyn because of the negligent lack of a center median. In determining whether to grant this late claim motion, the six factors enumerated in the Act must ordinarily be considered, i.e., whether: (1) the delay in filing the claim was excusable; (2) the state had notice of the essential facts constituting the claim; (3) the state had an opportunity to investigate the circumstances underlying the claim; (4) the claim appears to be meritorious; (5) the failure to file with the Clerk of the Court 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 (6) the claimant has any other available remedy.

In this case, however, a more fundamental threshold issue must be addressed – whether this Court has jurisdiction over the proposed claim. Claimant initially sued the City of New York, and then brought this late claim motion because after suit was commenced, the City sent a form letter stating that "a third party may be responsible," suggesting that claimant contact the New York State Department of Transportation. However, claimant, who submitted no reply papers, has provided nothing to contravene the state's assertion in its opposition papers to this motion that it did not construct, reconstruct, control, own or maintain the subject area on the Belt Parkway at the time of the accident. The state has submitted the January 3, 2001 affidavit of Osama Khalil, Civil Engineer and Claims Engineer for the New York State Department of Transportation, New York City Regional Office (the "Khalil Aff."), in which Mr. Khalil states that the section of road in question was built under Triborough Bridge Authority Contract #E-5 dated July 3, 1940 and was never added to the State Arterial System. See ¶3. Moreover, the Belt Parkway is designated as a "New York City route" in §349-f of the Highway Law.

The Court of Claims Act only grants this court jurisdiction over specified suits against the State of New York. A small number of other entities are subject to the jurisdiction of the Court of Claims via explicit statutory authority, for example, the New York State Thruway Authority by Public Authorities Law §361-b and the senior colleges of the City University of New York by Education Law §6224(4). However, there is no statutory authority subjecting the City of New York to the jurisdiction of this Court. In view of the foregoing, I cannot find that the Court of Claims has jurisdiction over the proposed claim.

Accordingly, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-62732 is denied.



February 16, 2001
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]As the claim of Mary Ann Cavallo is derivative, references herein will be to Anthony Cavallo in the singular unless the context indicates otherwise.
  2. [2]The following were reviewed: claimant's notice of motion with affirmation in support, the affidavit of Nicholas Bellizzi and Exhibits A-F; and defendant's affirmation in opposition with Exhibits A and B, Exhibit A being the Khalil Aff.