New York State Court of Claims

New York State Court of Claims

O'BRIEN v. THE STATE OF NEW YORK, #2002-015-274, Claim No. None, Motion No. M-65156


Late claim relief denied in case founded upon defective highway design where claimant failed to include affidavit of expert tending to prove design flaw. Without such affidavit merit of potential claim cannot be shown.

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:
Basch & Keegan, LLPEli B. Basch, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 19, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for an order permitting her to serve and file a late claim pursuant to Court of Claims Act § 10 (6) is denied. In the proposed notice of intention to file a claim attached to the motion papers as Exhibit B (treated by the Court on this motion as a proposed claim) the movant seeks to recover money damages for personal injuries sustained by her in a two vehicle automobile accident on "Ulster County Route 31 (Old Kings Highway), at its intersection with Ulster County Route 31[1] (Sawkill River Road)" on November 29, 2001 at 9:15 a.m. The proposed notice alleges that the defendant negligently and carelessly "planned, designed, constructed, re-constructed, studied or failed to adequately study, paved, striped, signed, maintained and controlled the county highways and roadways where the subject vehicular collision occurred."

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy."

The first issue for determination upon a late claim motion is whether the application is timely. Since the proposed notice of intention to file a claim asserts a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies and the motion is properly before the Court.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuse advanced in the movant's affidavit in support of the motion for her failure to timely pursue the claim is that she was unaware of the 90 day period for filing a claim provided in Court of Claims Act § 10 (3) as well as her confinement in a hospital and later in a skilled nursing facility until March 6, 2002 as a result of injuries sustained in the accident. While one's ignorance of the law is not an acceptable excuse (Griffin v John Jay Coll., 266 AD2d 16) movant's alleged confinement to a hospital and skilled nursing facility for the first 97 days following the accident is deemed a reasonable excuse (see, Bloom v State of New York, 5 AD2d 930; cf., Crane v State of New York, 29 AD2d 1001), and this factor weighs in favor of granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant alleges in her affidavit that the administrator of the estate of Gloria Ducas, the deceased driver of the other vehicle involved in the subject accident, served a "notice of claim" [sic][2] upon the Attorney General which was received on February 26, 2002 and thus within 90 days of the November 29, 2001 accident. Movant argues that the service of such notice by an unrelated person provided actual notice of the facts constituting the claim and that no prejudice to the State may be found under these circumstances.

In opposition to the motion defense counsel alleges that movant has not shown that the State received timely notification of the essential facts of this claim.

It appears to the Court that under these circumstances the State received timely notification of the subject accident and was afforded an opportunity to investigate the incident within 90 days of its occurrence by the Attorney General's receipt of a notice of intention (Exhibit A) served by certified mail, return receipt requested in the related matter of Ducas v State of New York (cf., Sandlin v State of New York, ____ AD2d ____, 724 NYS2d 1711). As a result it does not appear that the State was prejudiced by this movant's delay and the factors of notice, opportunity to investigate and lack of prejudice favor granting the motion.

Movant has not demonstrated, however, that the instant proposed notice of intention (treated as a proposed claim) appears to have merit. As Judge Corbett of this Court noted in Nyberg v State of New York, 154 Misc 2d 199 at 202 "a claimant seeking the Court's discretion has a greater burden than one who has timely initiated proceedings and simply files a claim. Claimant cannot simply hitch a ride on another claimant's action; his action must stand on its own." He then went on to say "late claim applications alleging negligence in highway design and construction must be supported by the sworn opinion of someone with related expertise. The absence of a supporting opinion will likely make such a late claim application untenable, albeit allowing for ad hoc exceptions . . ." A subsequent determination of Judge Corbett in a similar case was upheld by the Appellate Division, Second Department, in Klinger v State of New York, 213 AD2d 378, where that Court at 379 held that "claimant's unsupported opinion that her motor vehicle accident might not have happened had the State installed a traffic light at the intersection where it occurred does not suffice to establish that her claim has merit."

On this motion the movant has failed to demonstrate that her claim is potentially meritorious.

As to the last factor it is unclear from the motion papers whether movant has any other actions pending at this time arising from this accident or whether an alternative remedy is available.

A review of all of the statutory factors especially the absence of apparent merit persuades the Court that late claim relief should be denied.

July 19, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 22, 2002;
  2. Unsigned Affidavit of Eli B. Basch "notarized" April 26, 2002 with exhibits;
  3. Affidavit of Dorothy E. O'Brien sworn to April 26, 2002;
  4. Affidavit of Dennis M. Acton sworn to May 13, 2002.

[1]As set forth in the proposed notice of intention and in the attached police accident report (MV-104A) attached to motion papers at Exhibit C.
[2]See, notice of intention attached to motion as Exhibit A.