New York State Court of Claims

New York State Court of Claims

PASSARELL v. THE STATE OF NEW YORK, #2002-013-029, , Motion No. M-65031


Motion to file a late claim based on fatal highway accident is granted. Expert affidavit establishes the apparent merit of the proposed claim, and the State had full notice and opportunity to investigate.

Case Information

DAVID PASSARELL, as Administrator of the Estate of Ann Passarell
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:
Defendant's attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 9, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On June 19, 2002, the following papers were read on Claimant's motion for permission to file an untimely claim:
1. Notice of Petition and Affidavit of David Passarell ("Passarell Affidavit"), with Annexed Exhibits

2. Affirmation in Opposition of Reynolds E. Hahn, Esq. ("Hahn Affirmation"), with Annexed Exhibits

3. Affirmation in Support of the Motion of Albert L. Parisi, Esq. ("Parisi Affirmation"), with Annexed Affidavit of Eugene F. Penzimer, P.E. ("Penzimer Affidavit")

Claimant's proposed claim (Parisi Affirmation, Exhibit M) alleges that on October 23, 2001, Claimant's decedent, his wife Ann Passarell, died as a result of an automobile accident that occurred at the intersection of Route 104 and Route 272 in the Town of Murray, Orleans County. Other than stating that she was driving a 1997 Pontiac in an easterly direction, the proposed claim does not describe the events that led up to the accident. It alleges, however, that the State was negligent in carrying out its duty to safely construct and maintain State highways in the following respects: failing to provide and place appropriate highway markers on Route 104 (Ridge Road) to let motorists know they are approaching the intersection with Route 272 (Monroe-Orleans County Line Road) and in failing to provide and place appropriate highway markers, signals and signs to motorists on Route 272 (Monroe-Orleans County Line Road) to let them know they need to stop at the intersection with Route 104 (Ridge Road) in failing to properly construct the highway at the intersection of Route 104 and Route 272, in failing to remove trees and brush which affected motorists view of signs, signals and highway markers at the intersection of Route 104 and Route 272, and in diverse respects the State of New York was otherwise negligent.

Claimant David Passarell was granted limited letters of administration of his wife's estate on December 5, 2001, and pursuant to Court of Claims Act §10(2), this claim should have been filed within 90 days thereafter.

This motion was brought approximately four months after that date, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214). In determining a motion for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 Court, in the exercise of its discretion, balances these factors, and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimant does not provide a reason for his failure to timely initiate an action in this Court. I note that a notice of intention to file a claim was served on the Attorney General on March 29, 2002 (Passarell Affidavit, Exhibit C) and can only conclude that the reason was either ignorance of the law or attorney inattention, neither of which provides an acceptable excuse for delay (Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854; Sevillia v State of New York, 91 AD2d 792). This factor, therefore, must weigh against granting the requested relief.

Claimant asserts, however, that the State had almost immediate notice of the essential facts constituting the claim and, thus, both opportunity and motivation to investigate the underlying circumstances. A representative of the State Department of Transportation (DOT) was apparently called to the scene of the accident because one of the involved vehicles was a tractor-trailer, and the State official issued a vehicle inspection report, placing it "out of service" when it was determined that the brakes were inoperable as a result of the accident (Passarell Affidavit, Exhibit D). This, like the existence of a report filed with the State, does not necessarily establish that there was sufficient notice litigation was being contemplated (Wolf v State of New York, 140 AD2d 692). Claimant also asserts that the Police Accident Report (Passarell Affidavit, Exhibit A) was forwarded to DOT in November 2001, although the source of that knowledge is not indicated (id., ¶9), and the report itself does not implicate the State. Claimant also establishes, however, that following this accident, a number of public officials contacted DOT to encourage that alterations be made to the intersection in question. On March 5, 2002, in fact, the DOT Regional Director, Charles E. Moynihan, responded to one of them, indicating that the agency had completed its review of the intersection "with regard to the recent fatalities that have occurred." In opposing the motion, defense counsel does not even argue that the State lacked notice or an opportunity to investigate the underlying circumstances, which can be considered tacit admission that it was not prejudiced in this regard (Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024). Consequently, I conclude that Defendant would not be prejudiced by the relatively short delay if the requested relief were to be granted.

Although neither party addresses the question of whether Claimant may have another remedy available, an action against the driver of one of the other involved vehicles, the driver whose actions were implicated by the Monroe County Sheriff's Department as the sole cause of the accident (Hahn Affirmation, Exhibit A) must be considered. No information is provided to indicate whether an action against that driver could result in full or partial relief (see, Epstein v State of New York, 88 AD2d 967), and also, as indicated below, it is possible that negligence on the part of the State may have played a significant role in that driver's actions.

Claimant has succeeded in establishing 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 (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). The sequence of events leading up to the fatal accident, as set forth in the reports attached to the parties' submissions, can be summarized as follows: Claimant's decedent was traveling eastbound on Route 104 in a Pontiac Sunbird. As she approached the intersection with Route 272, a loaded tractor-trailer was approaching from the east. A third vehicle then entered the intersection from the north, without stopping at the stop sign intended to halt traffic traveling on Route 272, and struck the tractor-trailer. That vehicle, in turn, jack-knifed or took evasive action, crossed into the eastbound lane of Route 104, and ran head-on into the Pontiac.

Defendant asserts that the proposed claim lacks apparent merit because it rests on "conclusory allegations regarding construction and signage" (Hahn Affirmation, ¶10). Claimant, however, has submitted the affidavit of a professional engineer, Eugene F. Penzimer, who states that in his opinion, the placement, positioning and size of the stop sign (the sign that was ignored by the driver of the Chevrolet truck) was not in compliance with relevant provisions of DOT's Manual of Uniform Traffic Control Devices. He adds that DOT's own records reveal a significant history of other, similar accidents at the intersection, at least two-thirds of which were the result of southbound motorists on Route 272 failing to stop at this particular stop sign. At this juncture, "the court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course" (Matter of Santana v State of New York, 92 Misc 2d 1, 11). There is easily sufficient apparent merit to this proposed claim to allow it to be filed.

Taking into account the six statutorily prescribed factors, I find them to weigh in favor of granting Claimant's motion for permission to file a late claim. Claimant is therefore directed to file and serve his claim, in conformity with the requirements of Court of Claims Act §10 and §11 within 60 days after this order is filed.

September 9, 2002
Rochester, New York

Judge of the Court of Claims