New York State Court of Claims

New York State Court of Claims

ARONSON v. THE STATE OF NEW YORK, #2002-028-075, Claim No. NONE, Motion No. M-65339


Synopsis


Movant's application for permission to late file a Claim is denied without prejudice. Movant was required to submit an expert affidavit to establish merit of proposed highway design defect claim.

Case Information

UID:
2002-028-075
Claimant(s):
RALPH ARONSON, Individually and as Administrator of the Estate of JONATHAN EDWARD ARONSON and as Administrator of the Estate of IRIS SHERRY ARONSON The Court has amended the caption to reflect Ralph Aronson's appointment as Administrator of the Estate of Iris Sherry Aronson.
Claimant short name:
ARONSON
Footnote (claimant name) :
The Court has amended the caption to reflect Ralph Aronson's appointment as Administrator of the Estate of Iris Sherry Aronson.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-65339
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JOEL LUTWIN and AARON LEBENGER, ESQS.BY: Aaron Lebenger, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Frederick H. McGown, III, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 27, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Movant's application pursuant to Court of Claims Act §10(6) for permission to late file a Claim:

  1. Notice of Motion and Supporting Affirmation of Aaron Lebenger, Esq. (Lebenger Affirmation) with annexed Exhibits A-G; and Supporting Affidavit of Ralph Aronson (Aronson Affidavit), filed June 13, 2002;
  1. Affirmation in Opposition of Assistant Attorney General Frederick H. McGown, III, filed August 15, 2002, (McGown Affirmation);
  1. Affirmation in Reply to Opposition of Aaron Lebenger, Esq. Filed September 16, 2002.
Ralph Aronson (Movant), individually and as Administrator of the Estates of Jonathan Edward Aronson and Iris Sherry Aronson, his father and mother, respectively, seeks the Court's permission to late file a claim against the Defendant alleging the negligent and defective design, maintenance and construction of State Route 2 in the town of Petersburg, Rensselaer County[1]. Movant received letters of administration for his father's estate on April 8, 2002 and received same for his mother's estate on July 25, 2002. The facts giving rise to the proposed claim, culled from the Movant's submission, are as follows: On November 24, 2001, Movant, and his parents were occupants of an automobile driven by Movant's father, travelling westbound on State Route 2 in the town of Petersburg. At approximately 11:03 a.m., Movant's father lost control of the vehicle. Unable to regain control, the vehicle left the road, travelled down an embankment, rolled over several times and came to a stop, approximately 200 feet from the roadway, when the vehicle collided with a tree. Movant's mother was pronounced dead later that day at an area hospital and his father succumbed to his injuries approximately six weeks later, on January 8, 2002. Movant also sustained injuries in the accident.

The Defendant opposes the motion on each of the statutory factors.

It is well-settled that the factors the Court must consider in determining a properly framed Court of Claims Act 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 (see, Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981).

Before the Court analyzes the instant application using the foregoing algorithm, the Court examines the limitation periods set forth in the Court of Claims Act. Pursuant to Court of Claims Act §10(2) a claim against the State for damages for wrongful death must be served and filed within 90 days of the appointment of the decedent's personal representative. A survival action for conscious pain and suffering is controlled by Court of Claims Act § 10(3), not Court of Claims Act § 10(2) and therefore requires either a claim be served and filed, or in the alternative, a notice of intention be served within 90 days of the date the claim accrues (see, Pelnick v State of New York, 171 AD2d 734). Accordingly, the wrongful death claim on behalf of Movant's father was required to be filed or preserved within 90 days of April 8, 2002 (the date of Movant's appointment as this estate's representative) and the wrongful death claim on behalf of Movant's mother was required to be filed or preserved within 90 days of July 25, 2002 (the date of Movant's appointment as this estate's representative). Movant's individual claim and the survival claims on behalf of his parents were required to be filed or preserved within 90 days of November 24, 2001, the date of accident giving rise to the injuries.

On the date the instant application was made, Movant only required the Court's permission to late file the survival claims on behalf of both parents and his individual claim as the time to commence or preserve such claims expired on February 22, 2002. The wrongful death action on behalf of his father's estate could have been commenced or preserved as of right, as the 90 days to do so did not expire until July 7, 2002. As to the wrongful death action on behalf of Movant's mother, the limitations period did not begin to run until the appointment of a personal representative on July 25, 2002 (§ 10[2])[2].

The Court now turns to address the application properly before it for permission to late file a claim. As a threshold issue, the Court must determine whether Movant's application for permission to late file his claim was timely filed within the relevant statute of limitations. The failure to file such application within the prescribed time period "creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief" (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607 [emphasis omitted]). The causes of action presented herein on behalf of the movant individually, and on behalf of the estates for conscious pain and suffering are governed by the three year statute of limitations set forth in CPLR § 214. The causes of action for wrongful death are governed by the two year statute of limitations of EPTL § 5-4.1 (see, Williams v State of New York, 46 Misc 2d 724). As such, the instant application served on June 10, 2002 (see, CPLR § 2211) is timely made.

Movant asserts as reasonable excuses for the delay in filing the claim, inter alia, that his utmost concern was with his father's "comfort and health" (Aronson Affidavit ¶ 12), that he was not immediately aware that the road may have caused the accident thereby giving rise to a lawsuit (Id.), and that he was unfamiliar with the law (Id. at ¶ 7). Defendant's opposition is that the "inordinate delay of almost three months in asserting the claim is inexcusable" (McGown Affirmation ¶ 7). It is well settled that neither ignorance of the law (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654) nor ignorance of the facts giving rise to the claim [defendant's identity, status and nexus were known] is an acceptable excuse for delay. Moreover, the delay between Movant's recognition of the need for counsel and the filing of the instant application is insufficiently explained. However, inasmuch as certain of the proposed causes of action would have been timely as of right if filed during the pendency of this motion, the Court finds that under the sequence of such traumatic tragic events, the delay in filing the claim asserted is excusable. Accordingly, this factor weighs in Movant's application.

The factors of notice, opportunity to investigate and prejudice can be viewed together. While Defendant asserts these factors weigh against the instant application, in the Court's view, these factors present a "Catch 22" which compels the Court to conclude these factors weigh in Movant's favor. Whatever issues may be raised regarding the parents' survival actions and Movant's own direct action on these factors, the fact remains that the subsequent wrongful death claims spring from the same set of facts, namely the accident of November 24, 2001. Given the father's and mother's wrongful death action were amenable to being filed as of right as late as July 7, 2002 and October 23, 2002 , respectively, (see, supra), the State finds itself in no different position with regard to these factors on the date this application was made then it would if the death actions were simply commenced by service and filing of a claim. The Court further notes that the New York State Police conducted an investigation of this fatal accident, as did the "Office of Construction Safety" (see, McGown Affirmation, Exhibit B). On this record, the Court cannot conclude that Defendant lacked notice of the essential facts or that Defendant has been precluded from a meaningful opportunity to investigate the allegations. Other than by reference to the passage of time, Defendant has not established that it is substantially prejudiced[3]. The Court finds these factors weigh in favor of the instant application.

The most decisive component in the algorithm to determine a motion under Court of Claims Act § 10 (6) is whether the proposed claim appears to be meritorious, 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). Claimant must establish the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. Claimant need not establish a prima facie case at this point, but rather the appearance of merit (see, e.g., Jackson v State of New York, UID #2002-009-007, Claim No. NONE, M-64481, Midey, J., February 19, 2002) a standard which has been described as a "low threshold" (Bernard v State of New York, Ct Cl, Bell, J., August 8, 2000, UID#2000-007-043, Motion No. M-61948 ). Generally, in reviewing the allegations in the proposed claim any "[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). Defendant raises a number of objections to the merit of the proposed claim.

It has been held that certain late claim applications require an expert affidavit of merit (Klingler v State of New York, 213 AD2d 378, 623 NYS2d 319; Schreck v State of New York, 81 AD2d 882 [medical affidavit establishing a causal connection]; Nyberg v State of New York, 154 Misc 2d 199 [highway design and construction] because the alleged wrongdoing of the State cannot be assessed on the basis of common everyday experience and knowledge (Matter of Caracci v State of New York, 178 AD2d 876). There are exceptions to this requirement where the application includes sufficient information from which the Court can reasonably assess the merits of the proposed claim (see, De Paolo v State of New York, 99 AD2d 762 [medical records and medication inserts]; Nyberg v State of New York, supra, [allowing for ad hoc exceptions]). However, there is nothing in Movant's motion papers of probative value indicating that Defendant's alleged negligence was a proximate cause of Claimant's accident (see, Pagano v New York State Thruway Auth., 235 AD2d 409 [claimants did not submit evidence that roadway was not designed or maintained in accordance with the applicable construction standards and thus failed to establish appearance of merit]). Movant's allegation that the State was negligent in the design, construction and maintenance of Route 2 is nothing more than "a general allegation of negligence on the part of the State [which] is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891; Thomas v State of New York, 272 AD2d 650). The material relied on by Movant for notice, namely the exchange of information between the Rensselaer County Legislature (Lebenger Affirmation, Exhibt D) and the Department of Transportation (Lebenger Affirmation, Exhibit E) does not address the location of this accident specifically or the alleged defective condition which gave rise to this accident. Candidly, the Court has no inkling as to the basis of this proposed claim. Were the Court to consider this application allowing for an ad hoc exception, which it does not, the paucity of relevant material submitted on this application, exacerbated by the failure to submit DOT documents relating to the specific location of the subject accident (Lebenger Affirmation, ¶ 11), has left the Court with only anecdotal evidence of merit and the conclusory affirmation of counsel. On this record[4], and absent an expert affidavit, the Court is precluded from making any meaningful review of merit. Accordingly, this factor weighs against the instant application.

Turning to the final factor of another available remedy, it appears that at least the Movant and the mother's estate have potential causes of action against the driver of the vehicle in which they were occupants which causes this factor to weigh against their applications. On the other hand, the father's estate does not have another remedy available.[5]

Taking into account the six statutorily prescribed factors, the Court finds them to weigh against the granting of Movant's motion for permission to file a late claim.

Accordingly, Movant's application for permission to late file a claim is DENIED, without prejudice.



December 27, 2002
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] Although Movant's papers refer to a "Notice of Intention to File a Claim," a document which does not exist in Court of Claims practice (see, Court of Claims Act § 11 [ authorizing either a notice of intention or a claim]) and requests permission to late file a "Notice of Intention to File a Claim", which is not permitted by §10(6), the Defendant has addressed the motion as if it were in proper form. The Court accordingly will treat the Movant's Exhibit G, captioned as a "Notice of Intention to File a Claim" as the proposed claim.
[2] For purposes of this motion, the Court will assume, without deciding the issue, that Movant was authorized to file the Court of Claims Act §10(6) application on behalf of his mother's estate (but see, Lichtenstein v State of New York, 252 AD2d 921, affd 93 NY2d 911; see also Liddell v State of New York, 182 Misc 2d 133, affd 278 AD2d 928).
[3] The Court rejects Defendant's assertion, for which Defendant provides no authority, that the decision of its insurer to disclaim coverage (see, McGown Affirmation, ¶15) has prejudiced the State in the defense of this action as it appears the determination to disclaim was based upon the policy's definition of occurrence (Id., at Exhibit B).
[4] This Court is in agreement with the principal set forth in Nyberg, regarding the need for an expert affidavit in applications to late file claims for negligent highway design, construction and maintenance and the potentiality for ad hoc exceptions.
[5] It would behoove Movant's counsel to address the conflict of interest that exists given that Movant and the mother's estate have potential remedies against the father's estate as driver of the motor vehicle. The Court seriously questions the ability of the Movant, and counsel to represent all three parties' interests.