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.
NATIONWIDE INSURANCE CO. a/s/o RALPH AND GERALDINE PIPE
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
HANDELMAN, WITKOWICZ & LEVITSKYBY: Eric D. Handelman, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General,of counsel
August 21, 2002
See also (multicaptioned
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
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,
4. Affidavit of Geraldine M. Pipe, in support of motion, sworn to June 21,
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
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".
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
(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;
IT IS FURTHER ORDERED that the Court, sua sponte, dismisses Claim No. 105768
based upon a lack of jurisdiction.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
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.
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.