New York State Court of Claims

New York State Court of Claims

MORALES v. THE STATE OF NEW YORK, #2001-029-067, Claim No. NONE, Motion No. M-63105


Synopsis


Late claim motion denied without prejudice. No reasonable excuse. Has alternate remedies available. Failed to establish merit of claim that utility pole claimant's vehicle struck was negligently placed. Only have affidavit of counsel; no affidavit of expert.


NOTE - Reversed 292 AD2d 455


Case Information

UID:
2001-029-067
Claimant(s):
WILDA MORALES
Claimant short name:
MORALES
Footnote (claimant name) :
While the caption reflects this as a motion pursuant to General Municipal Law § 50-e, the parties have considered this to be a motion pursuant to Court of Claims Act §10 (6), as does the Court.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, amends the caption to reflect the properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-63105
Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Spiegel, Brown, Fichera & Acard, Esqs.By: Donald D. Brown, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 12, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:
REVERSED - 292 AD2d 455
See also (multicaptioned case)



Decision

This is a motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim, attached to the motion papers (see Exh. 2) asserts that (1) at approximately 4:24 am on October 28, 2000, movant was a rear seat passenger in a vehicle operated by Felicia Sierra; (2) the vehicle was traveling north on Route 9 in the Town of Poughkeepsie; (3) at about 1/10 of a mile north of the intersection with Spring Road, Ms. Sierra struck a utility pole owned by Central Hudson Gas and Electric (hereinafter Central Hudson) which was located in close proximity to the roadway, and split the car in half resulting in serious injuries to movant. The proposed claim asserts that the State was negligent in its design, construction and maintenance of Route 9 in permitting the utility pole to be placed too close to the highway, thus creating a hazard.

In support of the motion, movant's counsel, Donald D. Brown, Jr., has submitted an affirmation. Mr. Brown avers that Ms. Sierra lost control of her vehicle prior to striking the utility pole (affirmation paragraph 5). Counsel further asserts that according to his office's investigation, the pole that the Sierra vehicle struck is less than six feet from the edge of the northbound lane of Route 9 and, upon information and belief, is within the highway right-of-way (affirmation paragraphs 6 and 7).

In determining this motion, the Court, among other things, must look at certain factors set forth in Court of Claims Act § 10 (6). Movant has failed to satisfy the Court that her failure to timely file a claim was excusable. Although it is clear that movant suffered numerous injuries, counsel states that movant was hospitalized for only one week (Brown affirmation paragraph 5) and that movant retained counsel on November 20, 2000, less than 30 days after the accident. Further, there is no explanation why movant's counsel was unable to ascertain the owner of the utility pole prior to receipt of the Police Investigation Report and ascertain the State's purported involvement sooner.

The next factors to be addressed - whether the defendant had notice of the essential facts constituting the claim, whether the defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file a timely claim or notice of intention resulted in substantial prejudice to the defendant - are interrelated and will be considered together.

In its opposition papers, the State does not address the issues of notice or opportunity to investigate and asserts that it will not be prejudiced if the movant's motion for permission to late file is granted. The defendant cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023). We also find that the State had an opportunity to investigate and, therefore, will not be substantially prejudiced by the delay in filing a claim.

Movant does not mention in her motion papers the availability of alternate remedies. It appears that she possesses potential claims against the driver and owner of the vehicle in which she was a passenger, as well as the driver and owner of the other vehicle involved in the accident. Based upon the Town of Poughkeepsie Police Investigation Report (Exh. 1 attached to the motion), it appears that movant may also have a potential action against the restaurant which was watering its landscaping at the time of the accident and discharging water across the highway, which may have caused or contributed to the operator of movant's vehicle (Ms. Sierra) losing control of the vehicle, striking another vehicle and ultimately striking the utility pole.

The next factor we must consider is whether the claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tend to favor the request (Rosenhack v State of New York, 112 Misc 2d 967; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438). The burden is on movant to show that the claim is not patently groundless, frivolous, or legally defective and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists.

Movant's counsel asserts that the utility pole in questions is located less than 6 feet from the edge of the northbound lane of Route 9, a "high speed roadway where the speed limit is 55 miles per hour" (Brown affirmation paragraph 6). He further asserts that the utility pole was placed and maintained in violation of well recognized standards for the safe placement and maintenance of such utility poles within and near the highway right-of-way and the traveled portion of a high speed roadway (Brown affirmation paragraph 17). It is asserted that the utility pole was negligently placed or allowed to be placed in a "clear zone". Counsel refers to the New York Code of Rules and Regulations, Part 131[1], as well as, an American Association of State Highway and Transportation Officials Guide, a Federal Highway Administration Regulation and a 1967 New York State Department of Public Works document regarding placement of utility poles which were alleged violated by placement of the utility pole in question.

Counsel further asserts that he spoke to an attorney who handles defense work for Central Hudson and he was advised that the pole in question was placed when Route 9 was widened several years ago and that it was highly likely Central Hudson placed the pole at this location at the specific direction of the State (Brown affirmation paragraph 19).

Here, movant has presented only the lay opinion of her counsel that the defendant was negligent in the design, construction and maintenance of Route 9 regarding the placement of the utility pole. The affirmation is general and conclusory without any sufficient facts. The Court finds that these generalized and conclusory allegations make an intelligent determination of potential merit impossible (Block v New York State Thruway Auth., 69 AD2d 930). These matters being beyond the scope of common knowledge, the appearance of merit may only be established upon the affidavit of an expert setting forth a factual basis for the conclusion that a departure from accepted standards was the proximate cause of the injuries complained of (Schreck v State of New York, 81 AD2d 882; Favicchio v State of New York, 144 Misc 2d 212; Lane v State of New York, Claim No. None, Motion No. M-48071, filed September 3, 1993, Benza, J., affd 213 AD2d 457).

Based upon the foregoing, the Court finds that movant has met the factors dealing with notice and opportunity to investigate, and that the State will not be substantially prejudiced. We also find that the failure to timely file is not excusable; that movant has several alternative remedies which more directly address the circumstances set forth and, most important, that movant has not satisfied the burden of establishing a meritorious cause of action.

Accordingly, movant's motion for permission to file a late claim is denied without prejudice.


April 12, 2001
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims




[1]. However, he does not refer to the title, which is 17, just the part.