New York State Court of Claims

New York State Court of Claims

TRAVELERS v. THE STATE OF NEW YORK, #2002-019-549, Claim No. 105454, Motion Nos. M-65077, CM-65199


The State's motion to dismiss is granted due to Claimant's failure to comply with CCA 10 and 11; Claimant's cross- motion for permission to file late claim is denied without prejudice.

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:
FRIEDMAN, HIRSCHEN, MILLER & CAMPITO, P.C.BY: Lynn M. Blake, Esq., of counsel
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 18, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves to dismiss this claim pursuant to CPLR 3211 based upon Claimant's failure to comply with the service and/or filing requirements of the Court of Claims Act (hereinafter "CCA") 10 and 11. Claimant cross-moves for permission to file a late claim pursuant to CCA 10 (6). The State opposes the cross-motion.

The Court has considered the following papers in connection with these motions:
1. Claim, filed January 11, 2002.
2. Verified Answer, filed January 31, 2002.
3. Notice of Motion No. M-65077, dated April 19, 2002, and filed April 22, 2002.
4. Affirmation of Joseph F. Romani, AAG, in support of Motion No. M-65077, dated April 19, 2002, with attached exhibits.
5. Affidavit of Marlene L. Boedicker, in support of Motion No. M-65077, sworn to April 19, 2002.
6. Notice of Cross-Motion No. CM-65199, dated May 15, 2002, and filed May 16, 2002.
7. Affidavit of Lynn M. Blake, Esq., in support of Cross-Motion No. CM-65199, sworn to May 15, 2002, with attached exhibits.
8. Affirmation of Joseph F. Romani, AAG, in opposition to Cross-Motion No. CM-65199, with attached exhibits, dated May 31, 2002, and filed June 3, 2002.
9. Affidavit of George Sommers, in opposition to Cross-Motion No. CM-65199, sworn to May 21, 2002, with attachment.
10. Affidavit of Kevin Collins, in opposition to Cross-Motion No. CM-65199, sworn to May 21, 2002.

This Claim alleges that on March 22, 2001 the State "[w]as plowing State Route 10 when the [State] plow truck struck a New York State Gas & Electric pole causing the pole and wires attached to it to sag and ultimately strike the vehicle owned by Gabriel A. Inc. and insured by Travelers." (Claim, ¶ 5).[1] As best this Court can determine from this record, it appears that two separate incidents may be involved, namely a State-NYSEG utility pole/line collision and then a subsequent Gabriel-NYSEG utility pole/line collision. Claimant personally served this Claim upon the Attorney General's office on January 4, 2002 and filed said Claim with the Clerk of the Court on January 11, 2002. No notice of intention was ever served. The State filed a Verified Answer on January 31, 2002 containing affirmative defenses.

I. State's Motion to Dismiss

The Court will first address the State's motion seeking dismissal on the ground that Claimant failed to serve a notice of intention or file and serve a claim within 90 days as required by CCA 10 and 11.[2] It is well-settled that negligence claims for property damage in the Court of Claims are required to be filed and served within ninety days of accrual, unless a notice of intention is served within ninety days of accrual, in which case the claim may be filed within two years of accrual.[3] (CCA 10 [3] & 11). It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in the CCA are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723), and that the burden of establishing such compliance is on Claimant. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).

The State has submitted an Affidavit of Marlene L. Boedicker, a Law Department Document Specialist II employed by the Attorney General's office. Ms. Boedicker avers that after a review of the pertinent records that Claimant never served a notice of intention upon the State relating to this matter and that the Claim was personally served on January 4, 2002. Claimant does not dispute these representations. As such, in view of the fact that a notice of intention was never served, this Claim was untimely since it was served and filed on January 4, 2002 and January 11, 2002, respectively, which was well beyond June 21, 2001 (ninety days from the date of accrual of March 22, 2001). Accordingly, Claim No. 105454 must be dismissed.

II. Claimant's Cross-Motion for Permission to Late File

In response to the State's dismissal motion, Claimant seeks permission to file a late claim pursuant to CCA 10 (6). As a threshold issue, the Court notes that it has jurisdiction to review and determine this motion since it was filed within three years from the date of accrual. (CPLR 214; CCA 10 [6]).

The factors that the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,
5. 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

6. there is any other available remedy.

The most prominent factor for consideration is whether the proposed claim appears meritorious, since it would be futile to permit a meritless claim to proceed.[4] (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, Claimant must show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe a valid claim exists. (Id. at 11). Generally, a motion for permission to file a late claim should be supported with an affidavit from someone with first-hand knowledge of the incident, unless the information is contained elsewhere, usually the proposed claim. (Id. at 11). It is worth noting that the need for such additional proof derives, in part, from the statutory requirements relating to a verified claim and the heavier burden associated with an application to late file. (Id. at 11-12).

Claimant argues that the merit of this proposed claim is found in two DOT Small Claims Forms dated May 8, 2001 and October 23, 2001, respectively. These two Small Claims Forms contain the following description of the incident:
snow plow struck pole causing NYSG&E wires to sag. Our insd veh caught on wires & was struck by pole

Insd traveling straight sagging wires caught on trailer pole hit insd. veh. prior to this a city plow struck pole causing electric wires to sag.

(Exhibit C to Affidavit of Lynn M. Blake, Esq.).

In opposition, the State submits an Affidavit from George Sommers, the New York State Trooper who responded to the initial collision between the State snow plow and NYSEG's utility lines/pole, as well as an Affidavit from Kevin Collins, the snow plow operator. Trooper Sommers avers that he arrived at the accident scene, interviewed Mr. Collins, witnessed NYSEG repair crews arrive on-scene, and saw no other vehicles pass through the area or come into contact with the sagging lines and/or pole.[5] For his part, Mr. Collins indicates his snow plow hit power lines sagging due to heaving snow but that the pole remained upright. Mr. Collins did not witness any other vehicle come into contact with the lines/poles while he was at the scene during which time police and NYSEG arrived.

In this Court's view there are insufficient allegations from which this Court could conclude that there is reasonable cause to believe a valid claim exists. First, there is nothing supporting the conclusion that the utility lines and/or pole struck by the State snow plow are the same as those that the Gabriel vehicle struck or vice versa. Assuming, arguendo, that the utility lines and pole are one and the same, the relation between these two events is unclear; as is the State's alleged negligence in relation thereto. For instance, both Trooper Sommers and Mr. Collins aver that a NYSEG crew was on scene repairing the lines/poles and did not witness any subsequent collision. In short, the sequence of events is unclear from this record. Did NYSEG crews repair the sagging lines/pole prior to the Gabriel incident; did bad weather cause the lines to sag a second time; or some other scenario?

Moreover, the State raises the valid point that there is no affirmation from anyone with first-hand knowledge of this alleged incident. (Affirmation of Joseph F. Romani, AAG, ¶ 21). Both of the DOT forms are signed by Barbara Rapoza, an insurance representative with Travelers Insurance Company. In fact, it does not appear that any submitted paper contains Mr. Gabriel's signature, let alone verification, containing any allegations of the underlying incident. There is no reason to depart from the general rule requiring an affidavit from someone with first-hand knowledge just because the underlying nature of this proposed claim is a subrogation property claim. Travelers, as the subrogee of Gabriel, stands in the shoes thereof against the State whom its insured could have sued. (ELRAC, Inc. v Ward, 96 NY2d 58, 75). Stated another way, this proposed claim (be it with Travelers or Gabriel as the named claimant) is a negligence action arising from the events of March 22, 2001. Consequently, this proposed claim does not involve an insurance claim on which a Travelers representative would have first-hand knowledge. Rather, the merit of this proposed claim relates solely to the circumstances by which the Gabriel vehicle allegedly collided with the sagging utility lines/pole regarding which Travelers attorneys and representatives have no first-hand knowledge. Were this Court to allow this claim to proceed on only an attorney's affirmation and basic statements made by an insurance representative who does not possess first-hand knowledge, we would actually be permitting this late applicant to proceed upon a lower standard than that imposed upon a party filing a timely claim who must file a verified claim or risk dismissal.[6] (Martin v State of New York, 185 Misc 2d 799 [requirement of verified claim is jurisdictional requisite]). Accordingly, Claimant's allegation of negligence, lacking supporting facts, must be deemed conclusory in nature and insufficient to support a finding of merit. (Witko v State of New York, 212 AD2d 889, 891; Calco v State of New York, 165 AD2d 117, lv denied 78 NY2d 852). This is not to say, however, that Claimant will not be able to establish the appearance of merit upon proper papers in a second attempt at this same relief if they so choose. However, they have not done so on this record.

With respect to the remaining factors, Claimant argues that the delay in filing the claim was excusable because counsel was not retained until December 20, 2001. The State is correct, however, in asserting that the inability to retain an attorney does not amount to an excusable delay. (Rodrigues v State of New York, 143 AD2d 993; Simpson v State of New York, 96 AD2d 646). This factor weighs against Claimant.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. Claimant argues that these three factors were satisfied by and through several correspondence sent to the State on May 8, 2001, July 20, 2001 and October 23, 2001. However, the Court is concerned only with arguments relative to the ninety-day statutory period (e.g., prior to June 22, 2001) and, as such, the only relevant correspondence of those documents put forth by Claimant are a letter and a DOT small claims form both of which are dated May 8, 2001 since the others fall outside the relevant time frame. (Turner v State of New York, 40 AD2d 923). The letter to DOT from Barbara Rapoza, an insurance representative with Travelers Insurance Company, states, in pertinent part, as follows:
We are handling a claim for Gabriel A Inc Anthony & Norma who sustained a loss on 03/22/2001.

Our investigation reveals that you may be legally responsible for this loss, and we look to you to satisfy this obligation.
We are requesting reimbursement in the amount of $11,482.10. This represents our payment of $9482.10, and Gabriel A Inc Anthony & Norma's deductible of $2000.00.

(Exhibit B to Affidavit of Lynn M. Blake, Esq.).

In and of itself, this letter is insufficient to have provided notice of the essential facts or opportunity to investigate the same inasmuch as there is a total lack of any details relative to the nature of the claim, the alleged defective condition, or alleged negligent conduct of the State. With respect to the DOT Small Claims Form dated May 8, 2001, the State does not deny receipt of said form, but rather alleges the information contained therein was too vague to have provided either notice of the essential facts and/or an opportunity to investigate. In addition to the analysis of this form contained hereinabove, the Court notes that Claimant did not answer or fully respond to every question contained on said forms. For instance, Claimant did not list a "nearest intersection" or a "landmark" when describing the location of the incident or provide any specifics of the "State Vehicle involved". (Exhibit C to Affidavit of Lynn M. Blake, Esq.). The State argues that it would suffer substantial prejudice in view of these insufficient allegations which argument appears to be validated by the inability of Trooper Sommers or Mr. Collins to recall the incident as currently described. Accordingly, the Court finds these three factors weigh against Claimant.

The final factor relates to the availability of an alternative remedy. Based upon the limited facts available at this time, it appears that an alternate remedy may exist against NYSEG. This final factor weighs against Claimant.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that all of the six factors weigh against Claimant.

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-65077, is GRANTED and Claim No. 105454 is DISMISSED; and

It is FURTHER ORDERED, that Claimant's Cross-Motion No. CM-65199 for permission to permit the late filing and service of a claim is DENIED without prejudice. Claimant may submit a second application upon proper papers before the statute of limitations for a like claim would lapse under the CPLR. (CCA 10 [6]; CPLR 214).

July 18, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Claimant mistakenly entitled his Claim as a "Notice of Claim". The Court will refer to this document as the "Claim".

[2]The State preserved this question for review by raising, with particularity, Claimant's failure to comply with CCA 10 and 11 in its Verified Answer as affirmative defenses. (CCA 11 [c]).

[3]With the exception, of course, of property claims filed by inmates which are governed by CCA 10 (9).
[4]The Court is treating the pre-existing though untimely claim as the proposed claim. The State did not raise the issue that a proposed claim was not submitted and, in any event, contested the motion on the merits. (Syndicate Bldg. Corp. v City Univ. of N.Y., 151 Misc 2d 492, 495 n 2).
[5]Trooper Sommers' reference to search results conducted by an office staff member are hearsay and not considered herein.
[6]The Court does not address whether a supporting affidavit from the insurance representative setting forth the basis for the description (investigation, interviews, etc.) would suffice for purposes of a late filing application.