New York State Court of Claims

New York State Court of Claims

TULLY v. THE STATE OF NEW YORK, #2002-016-017, Claim No. None, Motion No. M-63854


Late claim motion granted where it was alleged state was negligent in connection with maintenance of roadway where auto accident occurred.

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):

Alan C. Marin
Claimant's attorney:
Paul B. Brickfield, P.C.By: Paul B. Brickfield, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
February 13, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Frances Malone and Marvette Tully as executor of the estate of Janice Tully and individually for permission to file late claims pursuant to §10.6 of the Court of Claims Act (the "Act"). The proposed claims arise from a September 12, 2000 auto accident in which a livery cab driving Janice Tully and Frances Malone to LaGuardia airport lost control and struck a guardrail and then a light pole. Tully died following the accident and Malone was injured. Claimants assert that defendant was negligent in connection with the maintenance and design of the roadway. In determining whether to grant this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first, second and third factors – whether the defendant had notice of the essential facts, whether the defendant had an opportunity to investigate and whether the defendant would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, claimants argue that these factors are satisfied because another passenger in the car, Paula Stevens, timely filed a claim against the State (as well as the City of New York). Arguably, the fact that Stevens served a claim while claimants here did not might lead the State to believe that Tully and Malone did not intend to pursue claims. However, Stevens' claim clearly gave the State notice of the accident itself and with regard to opportunity and prejudice, the State's defenses in that case are presumably the same as those in the instant case. In view of the foregoing, I find that these three factors have been met.

As to an alternate remedy, both parties acknowledge that claimants could sue the driver and owner of the livery cab. Claimants are also apparently pursuing a claim against the hotel that arranged for the car service. The viability of these alternate remedies is unclear, however. As to excuse, claimants appear to place the blame on previous counsel in Florida. However, to the extent they are asserting unfamiliarity with the law, this is not an excuse recognized by the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

The final factor to be considered is the appearance of merit. Claimants have submitted the affidavit of an engineer who states that in his opinion, the roadside light pole and column hit by the livery cab, being "unprotected fixed objects in the roadside clear zone," were unsafe and should have been removed, relocated or protected by a guardrail. In addition, the papers indicate that at a Department of Motor Vehicles hearing, the driver testified under oath that he recalls hitting a bump or hole in the road before losing control of the vehicle.

The proposed claims describe the location as the eastbound Brooklyn-Queens Expressway at or near 65th Place in Queens. Defendant asserts that there is no appearance of merit because the claims fail to comply with §11(b) of the Act; according to defendant, the claims do not adequately describe the location of the accident, nor make it possible to determine whether the State constructed, owns or is otherwise responsible for the location. Under Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646 (4th Dept 1980), the test is whether a claim is specific enough so as not to mislead, deceive, or prejudice the rights of the defendant. In evaluating the proposed claims alone, I find that they do not run afoul of §11(b).

In sum, claimants thus meet the standard set forth in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

For the foregoing reasons, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-63854 be granted. Within sixty (60) days of the filing of this Decision and Order, claimants shall file and serve their claims and otherwise comply with §§11 and 11-a of the Court of Claims Act.

February 13, 2002
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The following were reviewed: claimants' notice of motion with the affidavit of Marvette Tully with exhibits A-C, the affidavit of Frances Malone with exhibit A, counsel's affirmation in support with undesignated exhibits and memorandum of law in support; the September 10, 2001 affidavit of Nicholas Bellizzi; defendant's affirmation in opposition with exhibit A; and claimants' reply affirmation with exhibit 1.