New York State Court of Claims

New York State Court of Claims

BLAIR v. THE STATE OF NEW YORK, #2002-010-021, Claim No. 105285, Motion Nos. M-64540, CM-64862


Defendant's motion to dismiss is GRANTED and claimants' cross-motion for leave to serve and file a late claim 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):
Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 8, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on defendant's motion to dismiss and claimants' cross-motion for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation and Exhibit.........................1

Notice of Cross-Motion, Attorney's Affirmation in Opposition and Exhibits.........2

Reply Affirmation and Memorandum of Law..........................................................3
Defendant's Motion to Dismiss
Claim No. 105285 alleges that on June 14, 2001, Yonkers Police Officer Robert Blair (hereinafter claimant)[1] was driving a police motorcycle, in the course of his employment, westbound on the Cross County Parkway. As he exited to southbound Central Avenue, he allegedly struck a grate/grille on the exit ramp, which was not level with the roadway surface, and caused claimant to lose control of the motorcycle and sustain injuries.

On December 3, 2001, the claim was filed with the Court and on December 4, 2001, the Attorney General's office received a copy of the claim, served by certified mail, return receipt requested.

The requirements of the Court of Claims Act §§ 10 and 11 are jurisdictional in nature (see, Finnerty v New York State Thruway Auth., 75 NY2d 721). Accordingly, because claimants failed to timely serve and file the claim within 90 days of accrual (Court of Claims Act § 10[3]), the claim warrants dismissal (see, Gatz v State of New York, 283 AD2d 607 [claim was properly dismissed because it was neither served nor filed within 90 days of accrual]).

Accordingly, defendant's motion to dismiss Claim No. 105285 is GRANTED.
Claimants' Cross-Motion for Leave to File a Late Claim
Claimants cross-move for leave to serve and file a late claim in the same form as the initial claim. Court of Claims Act § 10(6) requires that the Court consider, among other relevant factors: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Claimants' purported excuse for the delay is the mistaken belief that the roadway was owned, maintained and controlled by the County of Westchester. This is not an acceptable excuse (see, Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854 [error in filing claim against wrong party was not excusable for delay]; Gatti v State of New York, 90 AD2d 840 [mistaken belief that town and not State owned the road was not reasonable excuse for delay]). This, however, is one factor and "[n]o one factor is deemed controlling nor is the presence or absence of any one factor dispositive" (see, Broncati v State of New York, 288 AD2d 172, 173).

The most significant factor is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). To show the appearance of merit of this negligence claim, claimants must have a basis for the allegation that there was a foreseeably dangerous condition which defendant either created or had notice of and failed to remedy within a reasonable time and that such failure was a proximate cause of claimants' injuries (see, Gordon v American Museum of Natural History, 67 NY2d 836).

Merely submitting a photograph of the alleged accident site does not, by itself, establish the appearance of merit of the proposed claim (see, Matter of Gallagher v State of New York, 236 AD2d 400 [photograph was taken approximately 8 months after the accident and did not establish merit]). Claimants, however, have submitted photographs showing the defect and the subsequent repair made on the date of the accident (Claimants' Ex. G).[2] The photographs, taken on the day of the accident which clearly depict the length, width, and depth of the defect, are sufficient for the purposes of this late claim application to establish constructive notice (see, Ferlito v Great South Bay Assocs., 140 AD2d 408, 409 [photographs may be used to prove constructive notice if taken reasonably close in time to the accident]). The defect was repaired by the State's Department of Transportation ("DOT") on the same day as claimant's accident and DOT's Highway Maintenance Daily Reports specifically refer to the accident and the repair of the collapsed grate (Claimants' Ex. I). Accordingly, the State cannot claim prejudice or a missed opportunity to investigate. Claimants also submitted an accident report and claimant's medical records detailing the injuries he sustained (Claimants' Ex. A; cf., Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness' statement]).

Upon weighing all the factors, including that claimants do not have an alternative remedy, claimants are GRANTED leave to serve and file a late claim in the same form as the initial claim and in compliance with the provisions of the Court of Claims Act within 30 days of receipt of a filed copy of this Decision and Order.

May 8, 2002
White Plains, New York

Judge of the Court of Claims

[1] The claim of Christina Blair, claimant's wife, is derivative.
[2] Defendant does not challenge the authenticity of these photographs.