New York State Court of Claims

New York State Court of Claims

NATIONWIDE INSURANCE v. THE STATE OF NEW YORK, #2002-019-564, Claim No. 105768, Motion No. M-65411


Claimant's motion for permission to late file property damage claim is granted; and Court sua sponte dismisses Claim No. 105768 for lack of jurisdiction.

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:
HANDELMAN, WITKOWICZ & LEVITSKYBY: Eric D. Handelman, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
August 21, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
1. Claim, filed March 18, 2002.
2. Verified Answer, filed April 22, 2002.
3. Notice of Motion No. M-65411, dated June 24, 2002, and filed June 26, 2002.
4. Affidavit of Geraldine M. Pipe, in support of motion, sworn to June 21, 2002.
5. Affidavit of Jackie Terry, in support of motion, sworn to June 20, 2002, with attached exhibit.
6. Affirmation of Eric D. Handelman, Esq., in support of motion, dated June 24, 2002, with attached exhibits.
7. Proposed Claim, dated March 6, 2002.
8. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated July 22, 2002, and filed July 24, 2002.
9. Memorandum of Law, in opposition to motion, dated July 22, 2002.
10. Reply Affirmation of Eric D. Handelman, in support of motion, dated July 25, 2002, and filed July 30, 2002.

The proposed claim is a subrogation claim for property damage in the amount of $1,478.18. On July 12, 2001, Claimant's subrogor, Geraldine M. Pipe, was operating her own vehicle on the Odessa Hill Bridge in Montour Falls in Schuyler County. Ahead of Ms. Pipe's vehicle was a street sweeper owned by the State and operated by Stephen McNeil, an employee of the State Department of Transportation (hereinafter "DOT"). According to Ms. Pipe she was driving on said bridge when:
[a]ll of the sudden and without any warning whatever, the street sweeper stopped on the bridge and then started backing up. I began blowing my horn, but it was no use. The sweeper backed up and onto the hood of my car.

I could not reverse my car to try and avoid the collision because there were cars directly behind me. Further, because I was on a bridge, I could not try and move my car to the right or to the left.

(Affidavit of Geraldine M. Pipe, ¶ ¶ 3 & 4).

Although Claimant served a Notice of Intention on the State DOT on July 24, 2001, it concedes that it never served the Attorney General's Office with said Notice of Intention. Claimant further avers that it filed a Claim with the Clerk of the Court on May 7, 2002, although this Court's records reflect a filing date of March 18, 2002. The State filed a Verified Answer on April 22, 2002 containing jurisdictional affirmative defenses stated with sufficient particularity under CCA 11 (c) so as to preserve said defenses.

First, before proceeding to Claimant's motion, Claimant has conceded improper service of said Notice of Intention and its inability to establish timely service and filing of said Claim in accordance with CCA 10 and 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). The Court is without discretion to waive these requirements. Consequently, Claim No. 105768, is dismissed, sua sponte.

Turning now to Claimant's motion for permission to late file, the Court notes as a threshold issue that it has jurisdiction to review and determine this motion since it was filed within three years from the date this claim accrued. (CPLR 214). Additionally, the Court will treat Claimant's now dismissed claim as the proposed claim. (Syndicate Bldg. Corp. v City Univ. of N. Y., 151 Misc 2d 492, 495 n 2).

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.

Whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (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). While this standard clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case. (Id. at 11-12). Moreover, "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits [citations omitted]." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976).

In this Court's view, there are two facets to a determination here of the appearance of merit, namely the applicable standard of care and whether the alleged conduct rises to that level. The State argues that the applicable standard of care is that of reckless disregard as found in Vehicle and Traffic Law 1103 (b), while Claimant argues that it is premature to determine whether the reckless disregard standard is appropriate on these facts. The parties agree that Vehicle and Traffic Law 1103 (b) exempts certain "hazard vehicles" engaged in highway work from the rules of the road thereby limiting liability to situations in which there has been a reckless disregard for the safety of others which has been applied to street sweepers (Riley v County of Broome, 95 NY2d 455), but disagree on its applicability to this case. Reckless disregard has been defined as when "'[t]he actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow' and has done so with conscious indifference to the outcome (Prosser and Keeton, Torts § 34, at 213 [5th ed; see, Restatement (Second of Torts § 500)." (Saarinen v Kerr, 84 NY2d 494, 501).

With respect to the applicable standard, the Court of Appeals has found that street sweepers actually engaged in work on a highway fall within Vehicle and Traffic Law 1103 (b) and, as such, are exempt from the rules of the road, unless the conduct was in reckless disregard of the safety of others. (Riley, 95 NY2d at 463). Claimant argues that it cannot be stated with certainty at this juncture that this street sweeper was actually engaged in work on a highway. There is no proof before the Court as to the actual activities of this street sweeper at the time of this accident other than Ms. Pipe's averment that it was backing up and that Mr. McNeil was a State DOT employee and the natural presumption that follows that he was engaged in official work. Nor is it entirely clear these vehicles were traveling in the driving lane since the Police Report attached to the Proposed Claim indicates this accident occurred in a "Maintenance Work Area".[1] Due to this undeveloped record, this Court agrees it is premature to definitively determine at this time that the street sweeper was engaged in work on a highway entitling it the Vehicle and Traffic Law 1103 (b) exemption. That having been said, however, it seems prudent to continue this analysis under the likely scenario that this street sweeper was engaged in work on a highway. If true, this Claimant could prevail at trial only if it proves that the operator of the street sweeper acted with reckless disregard for the safety of others.

As such, the second element noted above warrants discussion as well, namely whether Mr. McNeil's alleged conduct rises to the level of reckless disregard. More specifically, the State argues that "[e]ven when viewing claimant's evidence in a light most favorable to the claimant, claimant has not put forth any facts suggesting that Mr. McNeil intentionally disregarded the safety of others. Consequently, claimant's cause of action is without merit." (Affirmation of James E. Shoemaker, AAG, ¶ 9). The Court disagrees with the State's analysis. In the first instance, the State has not denied or contradicted Ms. Pipe's description of this accident with an affidavit from someone with firsthand knowledge of these events, most notably Mr. McNeil. Accordingly, the Court will accept Ms. Pipe's version of events and does not accept the State attorney's representation that Mr. McNeil looked before backing up since there is no supporting affidavit from Mr. McNeil. (Matter of Powell v State of New York, 187 AD2d 848). For that matter, even if there were such a supporting affidavit, this Court would not reach the State's conclusion for the reasons stated below.

This Court finds the Court of Appeals analysis in Bliss v State of New York, 95 NY2d 911, instructive since it also involved a truck backing up on a bridge. More specifically, in Bliss, the plaintiff's vehicle was traveling on the Tappan Zee Bridge when it was struck by a New York State Thruway Authority truck that was operating in reverse while dismantling a lane closure. Both the trial court and the Appellate Division deemed that the operator's conduct, although negligent, could not be described as reckless as a matter of law. (Bliss v State of New York, 272 AD2d 567, affg 179 Misc 2d 549). However, the Court of Appeals modified those rulings by finding that "[w]hile factual and credibility issues remain that prevent us from concluding as a matter of law that [the operator] acted recklessly-in conscious disregard of 'a known or obvious risk that was so great as to make it highly probable that harm would follow'; [citation omitted]-claimant raised a triable issue for the jury to consider, and summary judgment was improperly granted [citation omitted]." (Bliss, 95 NY2d at 913). In reaching this conclusion the Court of Appeals noted that the evidence included that the operator "[b]acked his truck, which had only side view mirrors and no rear view mirror, down a narrow decline on a bridge-located on a heavily-traveled interstate highway-in excess of the maximum safe speed." (Id.).

Here, the limited facts presented are similar. For instance, Ms. Pipe avers that the street sweeper backed up "without warning", thereby raising questions about Mr. McNeil's use of any reverse lights or beeping noise. Ms. Pipe also states that there were vehicles directly behind her which indicates a certain level of traffic congestion as in Bliss. Additionally, Ms. Pipe indicates that the physical restrictions of the bridge prevented her from moving to the right or left to avoid a collision. All of these facts are unchallenged and thus accepted as true for purposes of this motion. Based on these facts, similar facts of which led the Court of Appeals in Bliss to find triable issues of fact preventing summary judgment, this Court finds that Claimant has established that the proposed claim appears meritorious within the meaning of CCA 10 (6), especially in view of the minimal burden applicable on late filing motions.[2] (Marcus v State of New York, 172 AD2d 724).

With respect to the remaining factors, Claimant is quite candid in explaining that the delay was due to the ignorance of the filing requirements of CCA 10 and 11 on behalf of Nationwide representatives. Despite Claimant's frankness, this factor weighs against the requested relief. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654).

The State concedes that the three factors of notice of the essential facts, opportunity to investigate and lack of substantial prejudice weigh in Claimant's favor. However, neither party addresses whether an alternate remedy is available, but based upon the record presented the Court finds none. As such, the Court finds that these four factors weigh in Claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that five of the six factors, including the all-important factor of merit, weigh in Claimant's favor.

Accordingly, for the reasons stated above, IT IS ORDERED, that Claimant's motion, Motion No. M-65411, for permission to permit the late filing and service of a claim is GRANTED. Claimant shall file a claim with the Clerk of the Court and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Decision & Order with the Clerk of the Court. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court including CCA 10, 11, and 11-a; and

IT IS FURTHER ORDERED that the Court, sua sponte, dismisses Claim No. 105768 based upon a lack of jurisdiction.

August 21, 2002
Binghamton, New York

Judge of the Court of Claims

[1]See Box 3 of the Police Accident Report attached to the Proposed Claim wherein the reporting Deputy noted "13" which is listed as "Maintenance Work Area" in the key section.
[2] The procedural juncture of this matter (late filing motion) as compared to Bliss (summary judgment motion) does not warrant a different conclusion and, if anything, further supports the conclusion of an appearance of merit considering the minimal burden applicable here.