New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2002-015-277, Claim No. NONE, Motion No. M-65101


Parents of injured infant permitted to pursue late claim on infant's behalf stemming from auto accident on State highway. Parents' individual, derivative late claim not permitted.

Case Information

JAMES MOORE AND KAREN MOORE, Individually and as Parents and Natural Guardians of IAN MOORE, an infant
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:
E. Stewart Jones, PLLCBy: E. Stewart Jones, Jr., Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movants' application for an order permitting the service and filing of a late claim pursuant to Court of Claims Act § 10 (6) is granted in their capacity as legal representatives of the named infant and denied without prejudice in their capacities as individual claimants. In the proposed notice of intention to file a claim (herein treated as a proposed claim) the movants individually and as natural guardians seek to recover money damages for serious, permanent personal injuries sustained by an infant (Ian Moore) in a single vehicle automobile accident which took place at approximately 12:03 a.m. on January 1, 2002 on Route 203 near its intersection with Pond Hill Road in the Town of Chatham, Columbia County. It is alleged that at said time and place the infant was a passenger in a vehicle operated by Kenneth Goodrich which was caused to go out of control on a curve, skid off the road, strike a tree and overturn. The proposed notice of intention alleges that the defendant at all relevant times owned, operated, maintained, managed, signed and regulated the aforesaid roadway and regulated, controlled, supervised, managed and monitored the vehicle traffic thereon. It is further alleged that the defendant permitted and/or acquiesced in allowing the roadway to become and remain in an unsafe, unreasonably dangerous and defective condition constituting a peril, pitfall and/or concealed trap. Movants assert that the defective and dangerous condition of the roadway was known to the defendant for a substantial period of time prior to the accident thereby affording defendant actual and/or constructive notice thereof.

The State has opposed the motion.

At the outset it must be noted that as to the infant claimant late claim relief is unnecessary as it is alleged in the supporting affidavit of movants' counsel that Ian Moore's date of birth is September 21, 1984 making him seventeen years of age. It is well established that consistent with Article III § 19 of the New York State Constitution and section 10 (5) of the Court of Claims Act a person under a legal disability at the time of accrual of his or her tort claim may present a claim "within two years after such disability is removed." It has thus been determined that in cases involving a disability such as infancy permission to file a late claim on behalf of the infant is unnecessary provided the filing is made no later than two years following the removal of the disability (see, Boland v State of New York, 30 NY2d 337; Leibowitz v State of New York, 82 Misc 2d 424; Weber v State of New York, 267 AD 325).

Accordingly, with regard to movants' request as the infant's parents and natural guardians for leave to file a claim seeking to recover damages for Ian Moore's personal injuries the application is granted even though unnecessary since as the Court of Appeals majority stated in Boland v State of New York, supra at 343, "Perforce, it would be an abuse of discretion to deny her leave to file the claim."

To the extent that movants James Moore and Karen Moore seek late claim relief individually[1] to serve and file a derivative claim the motion is denied. The infant's disability does not inure to their benefit and consequently their individual applications must be considered in accordance with the provisions of Court of Claims Act § 10 (6) (see, Blatt v State of New York, 19 Misc 2d 3).

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 for failure to timely file a claim in the movants' attorney's affidavit is that movants were unaware of the 90 day filing period and that during such period of time they were primarily concerned with obtaining appropriate and necessary medical care for their injured son. One's ignorance of the law is not an acceptable excuse (Griffin v John Jay Coll., 266 AD2d 16) and it appears settled that parental preoccupation with the health and welfare of an injured child, while appropriate and laudable, is not deemed a reasonable excuse for the late filing of a parent's derivative claim (see, Porreca v State of New York, supra, 28 Misc 2d 1098). Additionally, movants' counsel acknowledged that his firm was retained by the movants on March 23, 2002 and that notices of claim were served on the Town of Chatham and Columbia County within 90 days of the claim's accrual. This factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant's counsel alleges in his affidavit in support of the motion that the defendant had ample notice of the essential facts constituting the claim since "the publicity surrounding the tragedy was significant." The Court is aware of no prior judicial determination in which notice to the State was predicated upon publicity surrounding an event and this Court refuses to find the State had notice of the underlying facts and its potential liability upon such an assertion (cf., Rotoli v Town of Gaines, 184 AD2d 1085). Moreover, if the exhibits attached to defense counsel's opposing affirmation are indicative of the publicity upon which the movants seek to rely those newspaper articles fall short of providing notice to the State that those involved might seek to hold the State liable for the happening of the accident thereby triggering a need on the part of the State to conduct an investigation. According to defense counsel neither the New York State Police (Claverack Barracks) nor the New York State Department of Transportation (Columbia County) responded to the scene of this terrible accident or conducted an investigation. The defendant's allegation in this regard stands unrefuted.

The proposed notice of intention (claim) and the supporting affidavit of movant's attorney appear to base the State's potential liability upon negligent maintenance and/or signage of the roadway. Highway maintenance issues are particularly susceptible to rapid and varying climatic changes at anytime but especially so in winter months raising at least the potential for prejudice resulting from delay in notifying the State of an accident. While signage is not so susceptible to rapid or unrecorded changes and presents less of a risk of prejudice the Court finds that as a whole the issues of notice, opportunity to investigate and prejudice weigh against granting the motion.

With regard to the issue of merit, the proposed notice of intention (claim) is significantly lacking in detail regarding the nature of the State's alleged negligence. Furthermore, while the affidavit of movants' counsel and the proposed notice of intention (claim) suggest the State's alleged negligence consisted of improper maintenance and/or signage counsel's reply affidavit asserts that movants "retained an expert who, within their [sic] bounds of reasonable engineering and technical certainty, opined that the State of New York was, in fact, negligent in its design, construction, maintenance and signing of New York State Route 203 in the Town of Chatham at the time of this accident on January 1, 2002." Movants did not identify the retained expert nor did they provide an affidavit from him or her relating the facts and opinions underlying the otherwise conclusory assertion of defective design and/or construction of the roadway. It has been held that an application for late claim relief predicated upon alleged negligent design and/or construction of a highway must be supported by the "sworn opinion of someone with related expertise" and that the "absence of such a supporting opinion will likely make such a late claim application untenable" (Nyberg v State of New York, 154 Misc 2d 199, 202; see also, Klingler v State of New York, 213 AD2d 378). The allegations of movants' attorney with regard to the State's negligent design and/or construction of the highway are insufficient to establish potential merit and this factor weighs against granting the application. Likewise, neither the proposed claim nor any other papers submitted in support of the motion provide any level of factual detail regarding the manner in which the accident and resulting injuries occurred or the manner in which the roadway was defectively signed or maintained making it impossible to determine the potential merit of the claim.

As to the final statutory factor, it appears that movants have already filed notices of claim against the Town of Chatham, and the County of Columbia and may also have legal recourse against the driver and/or owner of the automobile. Thus, it appears that movants may have alternative remedies.

A review of the above enumerated factors persuades the Court that the application for late claim relief should be granted to movants as the legal representatives of Ian Moore and denied without prejudice to movants as claimants individually.

August 2, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April, 2002;
  2. Affidavit of E. Stewart Jones, Jr., sworn to April 19, 2002;
  3. Proposed notice of intention to file a claim verified April 19, 2002.
  4. Affirmation of Paul F. Cagino dated May 6, 2002 with exhibits;
  5. Reply affidavit of E. Stewart Jones, Jr. sworn to June 12, 2002.

[1]Although the proposed notice of intention (sic) submitted on the motion does not contain a specifically designated cause of action on behalf of Ian Moore's parents their names are included in the caption along with the word "individually." Consideration of a proposed derivative claim must therefore be given (see, Porreca v State of New York, 28 Misc 2d 1098).