New York State Court of Claims

New York State Court of Claims

PUSTELL v. THE STATE OF NEW YORK, the NEW YORK STATE CANAL CORPORATION and THE NEW YORK STATE THRUWAY AUTHORITY, #2002-013-009, , Motion No. M-64140


Synopsis


Claimants' motion for permission to late file or, alternative, to have the notice of intention deemed the claim in this action is denied as unnecessary. Even though the infant claimant was represented by her parents and by counsel when initial efforts were made to commence a lawsuit, the tolling provisions of CPLR 208 apply, as she remains under the disability of infancy. A subsequently filed claim, therefore, is timely, and the description of the location of the accident contained in that claim is adequate because it permitted an immediately investigation to be made.

Case Information

UID:
2002-013-009
Claimant(s):
DAVID and ANDREA PUSTELL, Natural Parents and Legal Guardians of Lisa M. Pustell, an Infant Under 14 Years of Age,
Claimant short name:
PUSTELL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, the NEW YORK STATE CANAL CORPORATION and THE NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-64140
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
FULREADER, ROSENTHAL, SULLIVAN, SANTORO & KAULBY: MARC S. INFANTINO, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 13, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On February 20, 2002, the following papers were read on Claimants' motion for permission to file a late claim and deeming the notice of intention a claim:
1. Notice of Motion and Supporting Affirmation of Marc S. Infantino, Esq. ("Infantino Affirmation"), with Annexed Exhibits;

2. Affirmation in Opposition of James L. Gelormini, Esq. ("Gelormini Affirmation")


3. Filed Papers: Claim (Claim No. 104974)


This action arises from personal injuries suffered by Lisa M. Pustell on June 30, 1996, when she fell into a hole in the walkway alongside the Erie Canal in the Village of Pittsford. At the time of the accident, Ms. Pustell was 9 years old and she is now 14 years old.

The posture of this action is, to say the least, unusual. In September 1996, Lisa Pustell's parents, acting on her behalf and being represented by the first of a series of attorneys, timely and properly served a notice of intention to file a claim on the State of New York and the New York State Thruway Authority (Infantino Affirmation, Exhibit A).[1] In January 1999, which was more than two years after the accident, copies of a claim were served, apparently by certified mail, return receipt requested, on three named defendants: the State of New York, the Thruway Authority, and the Canal Corporation. Defendants' answer, served in February 1999, raised several jurisdictional defenses: inadequate description of the location of the incident in the notice of intention; inadequate description of the location of the incident in the claim; and untimeliness of the claim in that it was not served within two years of the date of the injury. In reciting the latter two defenses, Defendants also noted that the claim had not yet been filed with the Court of Claims as of the date on which the answer was drafted.

On October 1, 2001, Claimants, for the first time, filed the claim with the Court of Claims and, simultaneously, re-served each of the three defendants by certified mail, return receipt requested (id., Exhibit D). This claim was designated Claim No. 104974 by the Clerk's Office. As explained by counsel, the "recent actions of mailing the Notice of Claim [sic] to the Clerk of the Court of Claims for filing and mailing copies of the Notice of Claim to the defendants were done under the belief that such filing and service were timely and in preparation for the possibility that this Court may find the relief requested in this motion unnecessary" (id., p. 4). By agreement between the parties, no answer was served in response to this claim, as it was identical in all respects to the claim that had been served, and answered, in early 1999.

Defendant concedes that, as a result of the Court of Appeals decision in Henry v City of New York (94 NY2d 275), the infant Claimant's time to file and serve a claim has been (and still is) tolled during her infancy. In Henry, the lower court had ruled that the disability of infancy ended when the infant's mother retained counsel and timely filed a notice of claim under General Municipal Law §50-e. The Court of Appeals reversed, holding that CPLR 208 tolls a statute of limitations for the period of infancy, and the toll is not terminated by the acts of a guardian or legal representative in taking steps to pursue the infant's claim (id. at 279). Consequently, Claim No. 104974, which was served in September 2001 and filed on October 1, 2001, was timely. If the parties wish to stipulate that the answer served in February 1999 is to serve as the answer to this claim, I see no impediment to such an approach. I would suggest, however, that a written stipulation to that effect be drafted and filed with the Court, along with a copy of that earlier answer.

Defendant further contends, however, that even though it may be timely, the claim is jurisdictionally defective because it contained an inadequate description of the location of the accident. Information about the location of an incident is sufficient, however, if it makes investigation possible (Rhodes v State of New York, 245 AD2d 791; Grande v State of New York, 160 Misc 2d 383), and in this instance, Defendant acknowledges that shortly after the accident an employee of the New York State Canal Corporation investigated the matter and was able to ascertain its location (Gelormini Affirmation, ¶10).

I hold therefore that Claim No. 104974 is both timely and adequate, which makes Claimants' motion for permission to late file (or, alternatively, to have the notice of intention deemed the claim) unnecessary. The parties disagree as to whether this matter is ready for trial. I conclude that it is not, as no bill of particulars has been served, and the only depositions that have been conducted are those of the Claimants, which was done by special agreement between counsel because the Claimants now reside in Iowa and were in this area only temporarily for depositions in a related Supreme Court matter. Accordingly, a date for a conference will be set in this matter and the Court will issue a scheduling order.

Claimant's motion is denied as unnecessary.



March 13, 2002
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]Counsel for Claimants states that the notice of intention was served on the Canal Corporation on July 12, 1996 (id. ¶4), but no documentation of such service is provided, and the notice of intention itself names only the State and the Thruway Authority as defendants.