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 "...at 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
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
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 "...it 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 "...to 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.
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
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
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