TRAVELERS v. THE STATE OF NEW YORK, #2002-019-549, Claim No. 105454, Motion Nos.
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.
TRAVELERS INSURANCE COMPANY a/s/o GABRIEL A., INC.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
FRIEDMAN, HIRSCHEN, MILLER & CAMPITO, P.C.BY: Lynn M. Blake, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General,of counsel
July 18, 2002
See also (multicaptioned
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
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,
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,
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,
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, ¶
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
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.
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
(CCA 10  & 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,
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 ).
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
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
(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.
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
standard than that imposed upon a party filing a timely claim who
must file a verified claim or risk dismissal.
(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
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
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
(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
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 ; CPLR
July 18, 2002
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
Claimant mistakenly entitled his Claim as a
"Notice of Claim". The Court will refer to this document as the "Claim".
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]).
With the exception, of course, of property
claims filed by inmates which are governed by CCA 10 (9).
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
Trooper Sommers' reference to search results
conducted by an office staff member are hearsay and not considered herein.
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.