New York State Court of Claims

New York State Court of Claims

CARTWRIGHT v. THE STATE OF NEW YORK, #2002-005-549, Claim No. NONE, Motion No. M-64457


Claimant's motion for permission to file a late claim, supported by the expert opinion of a licensed professional engineer establishing the appearance of meritoriousness of the proposed cause(s) of action, is granted.

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:
Faraci & Lange, LLPMatthew F. Belanger, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James L. Gelormini, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 10, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On May 21, 2002, the following papers, numbered 1 to12, were read on motion by Claimant for permission to file a late claim:

Papers Numbered

1, 2, 3 Notice of Motion, Affidavits and Exhibits Annexed

4, 5, 6, 7 Opposing Affirmation, Affidavits and Exhibits Annexed

8, 9, 10 Claimant's Reply Affidavits and Amended Proposed Claim

11, 12 Defendant's Reply Affirmation and Reply Affidavit

Upon the foregoing papers, and after hearing Matthew F. Belanger, Esq., on behalf of Claimant, and James L. Gelormini, Esq., on behalf of Defendant, this motion is granted.

Claimant seeks permission to file a late claim pursuant to Court of Claims Act §10(6). The underlying incident occurred on January 14, 1999, as Claimant was seriously injured when his motor vehicle allegedly spun out of control on what is denominated as the Genesee Park Overpass, a portion of State Route 390. It is contended that the vehicle traveled up a "ramp" of plowed snow and vaulted over the guardrail, falling some 40 to 50 feet to the ground below.

A Notice of Intention to file a claim was served upon the Defendant on April 1, 1999 (Exhibit A), alleging that the cause of the accident was the manner in which that portion of the State roadway was "designed, constructed and maintained." A claim was thereafter served and filed in early August of 2000 (Exhibit B), and an Answer served on September 11, 2000 (Exhibit C), with certain affirmative defenses alleging, inter alia, jurisdictional infirmities. After motion practice seeking to strike certain affirmative defenses, I granted a cross-motion dismissing the claim (Exhibit D), inter alia, because the description of the place of the accident was arguably vague, and had dismissal not been granted, subsequent appellate review of that decision might have been rendered at a time that could have foreclosed the opportunity for this Court to consider an application for remedial relief of a late claim (see CPLR article 2).

Thus, the Claimant seeks the remedial relief permitted by §10(6). Preliminarily, the underlying incident occurred on January 14, 1999, and thus this motion, commenced in December 2001, is made within the three year statute of limitations for such cause of action pursuant to CPLR article 2. Claimant initially attached a verified proposed claim, and then submitted a verified Amended Proposed Claim which I have reviewed with respect to the instant motion.

Claimant properly addresses each of the six statutory factors delineated in §10(6). The excuse for the failure to timely file of course relates back to the sufficiency of the description of the location of the accident in the Notice of Intention. Whether that is characterized as ignorance of the law or possibly law office failure, neither of which is excusable (Sessa v State of New York, 88 Misc 2d 454, 459, affd 63 AD2d 334, affd 47 NY2d 976), the failure to satisfy all six statutory criteria is not fatal (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979). Claimant notes that this is not a matter where the State was deprived of any timely notice of the circumstances surrounding the action, and indeed he argues that the Notice of Intention was timely served, containing all the necessary information, except that the description of the place of the accident putatively was not specific enough for the purposes of §11 of the Court of Claims Act. Claimant argues that, nonetheless, the Notice of Intention was sufficiently specific to give the State notice of the accident and the essential facts underlying the claim, and an opportunity to investigate. Claimant also asserts that the State has suffered no prejudice due to the purported vagueness of the location articulated in the Notice of Intention or the lateness of the claim should relief be granted, disclaiming any allegations related to typical circumstances evoking issues of prejudice, to wit, transient conditions, etc.

As Claimant notes, the underlying allegations here address the allegedly negligent design, construction and maintenance of the entire Genesee Park Overpass, issues which arguably are not subject to assertions of prejudice, let alone the substantial prejudice articulated in the statute.

Claimant goes somewhat further than his Notice of Intention as reliance for the timely knowledge of the essential facts underlying the claim, supplying a videotape of a local television station's broadcast of that day's news story including an interview with the director of the Department of Transportation (DOT) about two accidents on the said overpass that day, including Claimant's incident. Moreover, by March 24, 2000, before Claimant had even served and filed his now-dismissed claim, the State sent Claimant a bill for the cost of damage to the guardrails from the accident (Exhibit F). Claimant has no other available remedy.

Thus most important, as it should be, is the appearance of meritoriousness of the underlying cause(s) of action. A claimant need only establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (see, Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11). If a claimant cannot meet this low threshold and the claim is patently without merit, it would be meaningless and futile to allow it to be filed (Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967). That is not the case here.

Claimant did not sit idly by before seeking the instant relief. He has provided the opinion of a licensed professional engineer, one Eugene Penzimer, who affirms his experience in the design, construction and maintenance, inter alia, of highways and bridges. I find him sufficiently qualified to render the expert opinion for this purpose, to wit, that the Defendant was "negligent in failing to properly design or maintain the Genesee Valley Park Overpass to limit or prevent the ramp effect caused by accumulation of snow and ice," even during the two hour period after the first accident on the overpass that evening (Bieber), and Claimant's later unfortunate accident.

Of course, the Defendant did not simply concede in the face of an expert's affidavit in support of the late claim, but rather engaged its own experts for this proceeding, opposing the motion. The opinions, provided, inter alia, by the Resident Engineer for the Monroe West Residency of the Defendant's Department of Transportation (DOT), J. Jeffrey Dunlap; Duane Amsler, a former Snow and Ice Control Engineer for DOT, as well as Gilbert Weber, a Civil Engineer employed by DOT, challenge and dispute the opinions provided by Claimant's expert.

I find that Claimant has done the "something more" articulated in Nyberg v State of New York, 154 Misc 2d 199, by providing an expert's opinion that the State knew or should have known that accumulations of snow and ice against bridge parapets and guardrails would create a risk of vehicle ramping accidents. He also concludes that there was improper design. Given the Defendant's presumed foreknowledge, Claimant alleges that the Defendant had an obligation to adopt maintenance policies to defeat the piling of snow and ice, and that it failed in that regard. While the Defendant has challenged the qualifications of Claimant's expert to express the opinions which he has provided to the Court, the opinion of Claimant's expert is not conclusory and sufficient fact and arguable support for his conclusions are expounded (Favicchio v State of New York, 144 Misc 2d 212; also see Patton v State of New York, Fitzpatrick, J., August 26, 2002, UID No. 2002-018-161, []). This is a late claim application, not a trial where expert witness disclosure is required (CPLR 3101[d]); it is a motion where the threshold has been set low. Claimant does not have to prove merit, but merely the appearance of meritoriousness, so succinctly defined in the seminal case of Santana v New York State Thruway Auth., supra, 92 Misc 2d 1, 11. Claimant has met this threshold.

I find that I am not in a position to assess the purported worthlessness, ignorance or the lack of competence for Penzimer's opinions, as urged by Defendant, at this stage of the proceedings. Indeed, given the conflicting and divergent expert opinions, it would appear that this matter requires the rigors of a trial where such expert opinions would be subject to cross-examination and ultimate judicial resolution.

Similarly, it is premature to determine at this preliminary stage whether the qualified immunity principles of Weiss v Fote (7 NY2d 579), as applied in Tuchrello v State of New York (190 Misc 2d 664), apply. Furthermore, it would appear that Defendant's arguments alleging a bar to recovery on public policy grounds, relying upon Manning v Brown, 91 NY2d 116, have been blunted by the more recent case of Alami v Volkswagen of Am., 97 NY2d 281, and thus any impairment while driving by Claimant which may have contributed to the accident should be subject to proof at a trial herein.

In any event, I find that the Amended Proposed Claim has the appearance of meritoriousness, and upon balancing all of the statutory factors, I deem it a provident exercise of my discretion to grant the motion. Accordingly, Claimant may serve and file the Amended Proposed Claim within 30 days of service and of a file-stamped copy of this order.

December 10, 2002
Rochester, New York

Judge of the Court of Claims