New York State Court of Claims

New York State Court of Claims

DESTEFANO v. THE STATE OF NEW YORK, #2002-030-534, Claim No. NONE, Motion No. M-65258


Motion for permission to file late claim granted. Claimant had initially pursued municipality. Appearance of merit to claim of injury caused by failure to correct dangerous condition near construction site

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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
September 3, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read and considered on Claimant's motion for permission to file a late claim pursuant to §10(6) Court of Claims Act:
1,2,3,4 Notice of Motion, Attorney's Affirmation with annexed exhibits by Del H. Brand, Attorney for Claimant, Affidavit of Rita DeStefano, Memorandum of Law, received May 23, 2002.
5 Affirmation in Opposition by Susan A. Cioci, Attorney for Defendant filed July 15, 2002.
6 Attorney's Affirmation by Del H. Brand filed August 5, 2002.

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See, e.g., Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed " any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules...." § 10(6) Court of Claims Act. Here, the applicable statute of limitations with respect to a claim of personal injury against one other than the State is three (3) years. §214 Civil Practice Law and Rules.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (NY Ct Cl 1977). 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, Claim No. NONE, M-64481, Midey, J., February 19, 2002.

In this case, the claim accrued on September 5, 2000, when Claimant alleges she fell over some construction fencing material laying across a sidewalk in the Village of Tuckahoe in the County of Westchester and suffered personal injuries. She indicates that she was taken to White Plains Hospital, where she underwent surgery for a fractured right wrist. [Exhibit "B"]. An accident report completed by the Tuckahoe Police Department at the time indicates, among other things, "...the orange safety fence at the scene was being used in conjunction with several traffic barrels to secure an incomplete section of the new fence that is being installed in connection with the Main St. bridge project. The sidewalk surface at the location is new and finished. Upon lifting the fence from the sidewalk I observed a pattern of the fence on the concrete surface indicating it had been laying on the sidewalk for a period time. I placed the fence behind the traffic barrels so it would no longer obstruct the sidewalk. Also at the scene was Dina Colovito who is the NYS/DOT Engineer assigned to the bridge project. She indicated to me that Burtis Const. is responsible for the maintenance of the safety devices on the site." [Exhibit "D"].

Counsel for Claimant - consulted by Claimant on September 11, 2000 - filed a Notice of Claim upon the Town of Eastchester on November 16, 2000 and the Village of Tuckahoe on November 17, 2000. [Exhibit "E"]. The Town of Eastchester advised counsel on March 9, 2001 that the sidewalk was exclusively within the jurisdictional boundaries of the Village of Tuckahoe. [Exhibit "F"].

An action was commenced in Westchester County Supreme Court by service of a summons and complaint on Burtis Construction Co. Inc. and the Village of Tuckahoe on or about October 1, 2001. [Exhibit "G"]. Issue was joined with the Village of Tuckahoe on or about January 11, 2002 with service of its Answer. [Exhibit "H"]. Counsel for Claimant indicates that it was review of this Answer that first alerted him to the possible involvement of the State defendant. [Affirmation of Del H. Brand, Esq., ¶9]. The Sixth Affirmative defense alleges that "plaintiff has failed to name an indispensable party to this action." Counsel indicates " was realized that despite the information in the police report casting responsibility with Burtis Construction, the State itself may be liable for negligently overseeing the State Bridge project." [Id]. Thereafter, counsel sent a Freedom of Information Law (hereafter FOIL) request to the New York State Department of Transportation " obtain information of the State's possible involvement." [Id, ¶ 10].

After reviewing the documents furnished pursuant to the FOIL request, it appeared that the State of New York could be viewed as having been at least partially responsible for the safety devices at the construction site, given the presence of its Department of Transportation (hereafter DOT) Engineer at the time, and the notations in her contemporaneous report concerning the Claimant's accident, [See, Exhibit "J], and what appears to be a report confirming inspection by the State of the contractor's subsequent repair of the condition. [Exhibit "K"].

Claimant has addressed at least some of the factors enumerated in § 10(6) Court of Claims Act. With respect to whether the delay was excusable, there is some authority for the proposition that a "diligent", although mistaken, pursuit of a claim against another governmental entity may constitute an excusable delay [See, e.g., Weaver v State of New York, 112 AD2d 416 (2d Dept 1985); Richeson v State of New York, 98 AD2d 656 (1st Dept. 1983); Gross v State of New York, 9 AD2d 594 (3d Dept 1959); Lebensfeld v State of New York, 14 Misc 2d 936 (Ct Cl 1958)] , although if the proper entity was readily ascertainable this does not alone constitute excusable delay. See, e.g., Erca v State of New York, 51 AD2d 611 (3d Dept 1976), aff'd., 42 NY2d 854 (1977); Mattice v Town of Wilton, 160 AD2d 1195 (3d Dept 1990); Gatti v State of New York, 90 AD2d 840 (2d Dept 1982).

Thus, when a claimant pursued a claim against Westchester County, learning only more than three months after its pursuit that the State, rather than the County, was responsible for maintaining the site of the accident, and the claimant then promptly brought a motion to file a late claim, the Court of Claims was ruled to have abused its discretion in denying the initial application. Weaver v State of New York, supra. It is noted that in that case "...personnel in the Westchester County Attorney's Office [had assured Claimant] that the county owned the Cross County Parkway." Id., at 417.

Clearly, more recent case law militates against viewing having pursued the wrong party as a reasonable excuse for the delay. See, e.g., Maurantonio v State of New York, 266 AD2d 290 (2d Dept 1999). Where, as here, other factors favor the Claimant such a reason for the delay - while not compelling - does not wholly favor denial of the motion. See, e.g., Marcus v State of New York, 172 AD2d 724 (2d Dept 1991).

The State has taken no position with respect to the related factors of notice, opportunity to investigate, and prejudice to the State. These weigh toward Claimant, in that State employees were directly involved in noting the fact of the accident and the steps taken to repair it, according to the undisputed documents presented by Claimant. The passage of time since the incident has not been so great that the State's ability to investigate is impeded to its prejudice.

The proposed claim has the appearance of merit: the most significant factor. Claimant has presented photographs of the site of the alleged accident, police reports noting that the potentially dangerous condition had been in existence "for a period of time" [See, Exhibit "D"]; presence of and supervision of subsequent repairs by New York State DOT personnel [See, Exhibits "J" and "K"]; and medical records showing physical injury to Claimant. [See, Exhibits "B" and "C"].

While there may be an available claim against both the Village and the construction company, unless the Village was more involved than investigation has revealed in the creation of the dangerous condition alleged, or had notice, this may be an illusory remedy.

Accordingly, and upon weighing all the factors, the Court finds that the balance of factors weigh in Claimant's favor, and it is therefore

ORDERED, that Claimant's application for permission to file a late claim is granted. Claimant is directed to serve and file a late claim in the form annexed to her present application, pursuant to Court of Claims Act §§10, 11, and 11-a within thirty (30) days of receipt of a filed copy of this Decision and Order.

September 3, 2002
White Plains, New York

Judge of the Court of Claims