New York State Court of Claims

New York State Court of Claims

RIBNIKAR v. STATE OF NEW YORK, #2002-018-189, Claim No. NONE, Motion No. M-65616


Motion to file late claim denied after balancing all factors pursuant to Court of Claims Act §10(6).

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:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 22, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Movant brings this motion for permission to file a late claim pursuant to Court of Claims

Act §10(6). She alleges that she sustained physical injuries on December 12, 2001 when at approximately 9:45 a.m., as she was traveling on Route 167 in the Town of Warren, Herkimer County, her vehicle left the roadway and struck an earth embankment. Movant asserts that the State negligently placed road markers, warnings, speed markers, and otherwise negligently constructed and maintained the roadway. Defendant opposes the motion.
Court of Claims Act §10(6) allows a movant who has failed to serve a notice of intention, or who has failed to file and serve a claim within the time frame set forth in Court of Claims Act §10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act §10[6]). Claimant's motion is timely (Court of Claims Act §10[6]; CPLR §214[5]).

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative (
Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
Movant asserts that her delay in filing the claim was excusable because of her serious medical condition; she was housebound, without a vehicle and immobile. She asserts that she was unable to go anywhere except to her doctor appointments, and she has attached her medical records to prove her medical condition. Movant's doctor would not provide an affidavit. Based upon her affidavit and the medical records, she was hospitalized for four days following the accident at Little Falls Hospital, and thereafter, referred to Dr. Stephen Albanese,
at State University Health Science Center (hereinafter Upstate Medical Center) for surgery on December 17, 2001, where she remained for three days. A second surgery was performed at Faxton Hospital in Utica on January 7, 2002. After this second surgery, she was in a cast until February 5, 2002, and confined to a wheelchair and crutches thereafter. Movant was disabled from work from December 12, 2001 through June 7, 2002. The records adequately establish, that due to her injuries relating to the accident, movant was incapacitated for the 90 day period following the accident.....[.] This factor weighs in favor of granting Movant's application.
The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant alleges that the State had notice of the essential facts and an opportunity to investigate since it received timely notice of the details of the incident from the police report of Movant's accident. Movant further asserts that the State had notice of the dangerousness of the curve because of the number of accidents previously at this same location. It is also Movant's position that the State had actual notice since following Movant's accident maintenance improved at the location.

Defendant denies timely notice or an opportunity to investigate and claims prejudice. There is no indication from the documents submitted that the State had timely notice of the facts underlying this potential claim. A report prepared by a State Trooper of an accident scene is not notice to the State without some indication that the report was given to someone in authority of the State (
Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,7; Oakley v State of New York, Ct Cl, J. Collins, dated September 26, 2001, Claim No 94016, Motion Nos M-63546, M-61131, UID No. 2001-015-184
Without timely notice, the State had no opportunity to investigate. The State did have notice of the underlying facts as of May 21, 2002, when Movant's attorney served a notice of intention upon the Assistant Attorney General. This serves to minimize any prejudice that the State will suffer if this application is granted. Moreover, the Court does not find that the two-and-one-half-month delay between timely ninety-day notice and the actual notice received by service of the notice of intention was so significant as to substantially prejudice the defendant in this case. The weather conditions at the time of the accident were transient, admittedly no changes have been made to the roadway, and the two-and-one-half- month difference in time would not significantly affect the recollection of witnesses.
The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. It is Movant's burden to establish that the proposed claim is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, supra at 11). Where a potential claim seeks to assert improper design and construction of a highway, it has often been held that an affidavit from an expert is necessary in order to assert that the roadway as it existed was not properly constructed and designed and was a proximate cause of the movant's accident (See, Nyberg v State of New York, 154 Misc 2d 199). However, there are situations where an affidavit from a layperson provides sufficient factual basis for the Court to conclude that there is a reasonable basis to believe that a valid cause of action exists even when highway design and construction are alleged (See, Morales v State of New York, 292 AD2d 455). In this case, Movant's affidavit is not sufficient. Movant has failed to allege any facts to indicate how the State negligently designed, constructed or maintained the roadway. Defendant, on the other hand, refers to the accident report, and Movant's own statement to her doctor to suggest that the cause of the accident was the result of excessive speed for the curve. Based upon the information before the Court at this time, this factor weighs against Movant's application.
The final factor is whether the movant has any other available remedy. Movant admittedly has another remedy, she is suing the County of Herkimer, the Herkimer County Sheriff's Department and the Town of Warren in Herkimer County Supreme Court. This factor weighs against granting Movant's application.
Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court DENIES the Movant's motion to permit the late filing and serving of the claim without prejudice to submitting a new application addressing the deficiencies noted herein.

November 22, 2002
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

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

Affidavit of Margaret M. Ribnikar, in support with all exhibits

attached thereto..........................................................................2

Supplemental Affidavit of Margaret M. Ribnikar, in support with

exhibits attached thereto..............................................................3

Affirmation of Joel L. Marmelstein, Assistant Attorney General,

in opposition, with all exhibits attached thereto............................4

[.]....Defendant cites my decision in Murphy v State of New York, Ct Cl, J Fitzpatrick dated April 9, 2001, Claim No. None, Motion No. M-62573, UID No. 2001-018-080,
as support for the position that a physician's affidavit must be submitted to substantiate as an acceptable excuse incapacity for medical reasons. That case, however, was significantly different. There the movant was only hospitalized for seven days and directed to remain out of work for only one month. There was nothing to suggest incapacity for the 90 days immediately following his accident and no allegation that his physician refused to provide an affidavit.