New York State Court of Claims

New York State Court of Claims

PATTON v. STATE OF NEW YORK, #2002-018-161, Claim No. 105365, Motion No. M-65102


Late claim application is granted and balancing the six factors pursuant to §10(6) of the Court of Claims Act.

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:
Defendant's attorney:
By: ROGER B. WILLIAMS, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 26, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant brings this motion for permission to file a late claim pursuant to Court of Claims Act §10(6). The proposed claim asserts that on or about December 30, 1999, Tiffany Patton was injured in an automobile accident caused by the negligent design and maintenance of a State highway.

In deciding whether to grant a motion for permission to file a late claim, the Court of Claims is granted very broad discretion in making its determination. However, §10(6) of the Court of Claims Act does set forth six factors that the Court must weigh in deciding a motion of this type: whether the delay was excusable, whether the State had notice of the essential facts underlying the claim, whether the State had an opportunity to investigate those facts, whether the claim has merit, whether the State would suffer prejudice from the late filing, and whether the claimant has any other available remedy.

Claimant's counsel asserts that the notice of intention was untimely by one day as the result of miscalculation of the 90 day time-frame because the year 2000 was a leap year. It well-settled law that attorney mistake or ignorance is no excuse for filing a late claim (
Almedia v State of New York, 70 AD2d 712, 713). However, there is no language in the section that "makes the presence or absence of any one factor determinative"(Bay Terrace Coop. Section IV Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981). While the Court finds the leap year error unreasonable, that sole factor can not by itself determine the status of this late claim application.
The State's knowledge of the essential facts and its ability to investigate them are interrelated, so the Court will address them together along with whether the State will suffer prejudice. The State received notice of the claim and had an opportunity to investigate the claim by timely service of a notice of intention upon the attorney general (Williams affirmation ¶3). The State has essentially stipulated to the fact that it would suffer no prejudice from a late filing of this claim (Williams affirmation ¶3). These factors weigh in favor of granting claimant's application.

It is also clear that the claimant has no alternative remedies for recovery. There are no other parties to recover against since it appears from the documents that claimant has no knowledge of the identity of the driver who "cut her off."

The defendant opposes the motion solely on the ground that the claim lacks merit. In order for a cause of action to be considered as having merit, "(1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists" (
Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11). Additionally, in a motion for permission to file a late claim for negligent highway design or maintenance, the claim should "be supported by the sworn opinion of someone with related expertise" (Nyberg v State of New York, 154 Misc 2d 199, 201; Schreck v State of New York, 81 AD2d 882; Favicchio v State of New York, 144 Misc 2d 212; but see, Morales v State of New York, 292 AD2d 455).
The claimant has, in her notice of motion, submitted to the Court the sworn affidavit of Jerome Thomas, the former Director of Highway Maintenance for the New York State Department of Transportation. The Court, having also received a curriculum vitae for Mr. Thomas, considers his opinion to be that of an expert for the purposes of this motion. Mr. Thomas has detailed specific facts and circumstances surrounding the accident, and also offered his expert opinion as proof to the State's deviation from generally accepted designs for highway safety and maintenance. The Court, therefore, finds that Mr. Thomas' affidavit, in conjunction with an affidavit from claimant and medical records submitted from her physicians, is sufficient for a holding that this claim has merit.

Therefore, it is hereby ordered that Motion No. M-65102 is GRANTED. The claimant is hereby directed to file and serve a claim in accordance with the Court of Claims Act within 30 days of the date this Order is filed with the Clerk of the Court.

August 26, 2002
Syracuse, New York

Judge of the Court of Claims

The Court considered the following in deciding this motion:

Notice of Motion.................................................................................................................1

Affidavit of Sidney P. Cominsky, Esquire, attorney for claimant, with

all exhibits attached thereto.........................................................................2

Affirmation of Roger B. Williams, Esquire, Assistant Attorney General,

in opposition with all exhibits attached thereto...........................................3

Affidavit by Janet M. Izzo, Esquire, in support, filed June 5, 2002....................................4