Reply Memorandum of Law, with Attachments 8
As set forth in the filed claim (Claim No. 104280), as well as the proposed
claim submitted with claimant's reply memorandum, claimant seeks to recover
damages for personal injuries suffered by him in a motor vehicle accident which
occurred on May 15, 1999. On that date, claimant was a passenger in a vehicle
involved in a single car accident which occurred when the vehicle left the paved
roadway of State Route 34B in the Town of Lansing, Tompkins County. Claimant
alleges that the defendant was negligent in the construction and maintenance of
State Route 34B.
In this matter, claimant attempted to file
notice of intention to file a claim with the Court, which was received by the
Clerk of the Court of Claims on August 13, 1999, and then returned to claimant's
attorney on August 16, 1999 (see Exhibit A to Item 2). Claimant also served a
copy of the notice of intention by Federal Express ("FedEx Priority Overnight")
which was received by the office of the Attorney General on August 13, 1999 (see
Exhibit B to Item 2).
Subsequently, claimant served his claim upon the Attorney General by personal
service on May 15, 2001. The claim was filed with the Clerk of the Court on the
same date, May 15, 2001, two years to the day from the date of the incident
forming the basis of the claim.
In its answer, the State asserts, as an affirmative defense, that the claim was
untimely served and filed, arguing that the notice of intention was improperly
served upon the Attorney General, since it was served by Federal Express and not
by certified mail, return receipt requested (see defendant's answer, included as
Exhibit G to Item 2, par. 11).
Upon receipt of defendant's answer, claimant instituted this motion seeking to
address the jurisdictional question raised by defendant, and defendant responded
by its cross-motion seeking to dismiss the previously served and filed claim.
A claim alleging acts of negligence against the State must be served on the
Attorney General and filed with the Clerk of the Court of Claims within 90 days
of accrual, unless a notice of intention is served upon the Attorney General
within such 90 days (Court of Claims Act, § 10). If a notice of
intention is so served upon the Attorney General, the claim must then be served
and filed within two years from the date of accrual. Additionally, Court of
Claims Act, § 11(a) requires that a claim or a notice of intention must be
served upon the Attorney General either personally or by certified mail, return
In this case, although the notice of intention was timely served within 90 days
of the date of accrual, the service of the notice by Federal Express was not
made in compliance with the requirements of Court of Claims Act, § 10(3)
and is therefore not valid (LaFrance v State of New York, 147 AD2d 985;
lv denied 74 NY2d 604; see also, Hodge v State of New York, 158
Misc 2d 438, affd 213 AD2d 766).
The provisions relating to the time and manner of service and filing are
jurisdictional prerequisites to the maintenance of a claim, and as such must be
strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249).
As a result, this Court does not have the authority to cure or overlook defects
in the time and/or manner of service and filing, assuming that such defenses are
properly raised by the defendant either in its responsive pleading or by a
motion to dismiss made prior to service of said responsive pleading, as required
by Court of Claims Act, § 11(c).
Accordingly, even though the notice of intention was timely served, the
improper service of the notice of intention renders it a nullity, and claimant
is therefore not entitled to the extension of time in which to serve and file a
claim provided by Court of Claims Act, § 10(3). As a result, although
Claim No. 104280 was eventually served and filed within two years from the date
of accrual (which would have been timely had the notice of intention been
properly served upon the Attorney General), the claim was served and filed well
beyond the 90 day time period set forth in § 10(3). Therefore, Claim
No. 104280 is subject to dismissal, and the relief sought in defendant's
cross-motion must be granted.
Therefore, the Court must now consider claimant's request for late claim
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
With regard to excuse, claimant's attorney asserts that her law firm was not
retained until the day before the 90 day deadline for service of a claim or
notice of intention expired, and it was therefore necessary to draft, file and
serve the notice of intention in one day. Additionally, claimant's attorney
asserts that the defective notice of intention was not returned to them, as
required in cases involving claims against municipalities under General
Municipal Law, § 50-e(3)(c). In essence, claimant's attorney has
attributed the delay in the proper filing and service of this claim to
unintentional law office failure as to the service of the aforementioned notice
of intention. It is well settled, however, that neither ignorance of the law
(see, Modern Transfer Co. v State of New York, 37 AD2d 756), nor law
office error (see, Almedia v State of New York, 70 AD2d 712; see also,
Szmulewicz v State of New York, 29 Misc 2d 298) can be considered a
reasonable excuse for failure to properly and timely serve the claim.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. Even though it was not properly served, the notice
of intention, which was received by the Attorney General on the 90th day
following the date of the incident, did provide the State with notice of such
facts as the name and address of claimant, the date, time and location of the
accident, and a brief description of the nature of his claim. Defendant
asserts, however, that the essential facts as set forth in the notice of
intention are substantially different from the acts of negligence complained of
in the previously filed (as well as the proposed) claim. However, the purpose
of a notice of intention (in addition to extending the time for service and
filing of a claim) is to put the State on notice that a claim may be asserted
against it. It need not set forth a valid cause of action or legal theory for
recovery (Epps v State of New York, 199 AD2d 914; Cannon v State of
New York, 163 Misc 2d 623). In this claim, the Court is satisfied that
sufficient facts were presented in the notice of intention which would allow the
State to conduct a meaningful investigation.
Additionally, Claim No. 104280, served on May 15, 2001, although it is being
dismissed herein, set forth identical allegations of negligence as contained in
the proposed claim herein.
Based on the above, the Court finds that the State will not be prejudiced
should the Court grant this application.
The next factor, often deemed the most critical, is whether the proposed claim
has the appearance of merit. In order to establish a meritorious cause of
action, claimant has the burden to show that the proposed claim is not patently
groundless, frivolous, or legally defective, and that there is reasonable cause
to believe that a valid claim exists (Matter of Santana v New York State
Thruway Authority, 92 Misc 2d 1).
The proposed claim seeks to recover damages for injuries suffered by claimant
when the vehicle in which he was a passenger went off a State highway and was
involved in a collision. Claimant alleges that the State had negligently
allowed a section of the State highway to be raised to such an elevation in
relation to the abutting drainage ditch which eliminated any reasonable
opportunity for out-of-control vehicles to make a safe recovery. In addition,
claimant alleges that the State failed to post warning signs or markings,
including the failure to paint lines on the road identifying the shoulder,
during the re-paving of this section of the highway.
The State has a duty to maintain its roads in a safe condition, and the failure
to do so can result in liability being imposed against the State (Friedman v
State of New York, 67 NY2d 271). For purposes of this application,
therefore, the Court finds that claimant has asserted a meritorious claim
against the State.
Since claimant was a passenger in the vehicle involved in this accident, it
does appear that he would have another remedy available to him, since he may be
able to pursue an action against the driver and/or owner of the vehicle to
recover for his injuries.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979) and none of the factors can require denial as a matter of law.
Upon weighing and considering all of the factors set forth herein, and viewing
all of the factors set forth in Court of Claims Act, Section 10(6), it is the
opinion of this Court that claimant should be allowed to file his proposed
Accordingly, it is
ORDERED, that Cross-Motion No. CM-64703 is hereby GRANTED; and Claim No. 104280
is hereby DISMISSED; and it is further
ORDERED, that Motion No. M-64503 is hereby GRANTED, and claimant is directed to
serve his claim upon the Attorney General and to file the claim with the Chief
Clerk of the Court of Claims within 45 days from the date of filing of this
decision and order in the Clerk's office, with such service and filing to be in
accordance with the Court of Claims Act, with particular reference to Sections
10, 11 and 11(a), and the Uniform Rules for the Court of Claims.