4) Affidavit of Wendy E. Morcio, Esq., sworn to July 15, 2002, with attached
exhibit; This is Claimant Anthony Dyal's motion for permission to file a late
claim pursuant to §10(6) of the Court of Claims Act (the"CCA"). On July
21, 2001, Mr. Dyal was injured in a two car motor vehicle accident near the
intersection of Route 33 and Town Line Road in the town of Alden, Erie County.
According to Claimant's motion papers, the accident occurred when the driver of
the second car pulled onto Route 33 from Town Line Road in front of Mr. Dyal's
car. In his underlying claim, Mr. Dyal alleges that the accident and his
resulting injuries were caused by Defendant's negligent design, maintenance,
repair, and upkeep of the intersection. Claimant originally filed a claim in
this matter on February 8, 2002. Defendants answer asserted untimeliness as an
affirmative defense and this motion ensued.
Subdivision 6 of §10 of the CCA enumerates six factors to be weighed in
connection with a late claim motion: (1) whether the delay was excusable; (2)
whether Claimant has any other remedy; (3) whether Defendant had notice of the
essential facts constituting the claim; (4) whether Defendant had an opportunity
to investigate; (5) whether Defendant would be substantially prejudiced; and
(6) whether the claim appears to be meritorious. This list is not exhaustive
and the presence or absence of any one factor is not dispositive. Rather, the
Court in its discretion balances these factors in making its determination.
(Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys.
Policemen's and Firemen's Retirement Sys., 55 NY2d 979). Defendant opposes
Claimant's motion asserting that each of these six factors weighs in Defendant's
This motion was filed approximately eleven months after Claimant's accident.
Claimant does not offer any excuse for his delay and this factor therefore
weighs in Defendant's favor. Claimant points out however, and correctly so,
that the absence of an excuse for the delay is only one of the factors
considered by the Court in reviewing a §10(6) application and does not
necessarily preclude the relief sought here (Bay Terrace Coop. Section IV v
New York State Employees' Retirement System Policemen's & Firemen's
Retirement System, supra).
Claimant admits that he has another remedy and that he has commenced an action
in Erie County Supreme Court against the driver of the other vehicle. This
factor too weighs in Defendant's favor.
The next three factors covering notice, opportunity to investigate, and
prejudice are closely related and may be considered together (Brewer v State
of New York, 176 Misc 2d 337, 342). Claimant argues that Defendant had
notice of the accident as the matter was reported to and investigated by the
Erie County Sheriff's Department. Claimant suggests that, since the accident
occurred on State owned property, the State would be given notice of the
accident from the sheriff or other authority. Claimant maintains that, because
Defendant most probably received such notice, it had an opportunity to
investigate and, therefore, would not be substantially prejudiced by the
Defendant maintains that notice to the sheriff does not constitute notice to
Defendant and that Defendant did not, in fact, receive notice of the matters
asserted in the claim prior to receiving the untimely claim in February of 2002.
Because it did not receive notice, Defendant argues that it did not have an
opportunity to investigate the matters asserted in the claim and that it would
be substantially prejudiced if the motion were to be granted.
The fact that an accident report was prepared by the Erie County Sheriff does
not suffice to satisfy Claimant's burden of showing notice to Defendant
(Washington v City of New York, 72 NY2d 881; Matter of Santana v New
York State Thruway Auth., 92 Misc 2d 1). This is especially so in a case
such as this when the alleged defect is that bushes and shrubbery near the
intersection created a hazard by limiting the intersection sight distance.
Though the accident report indicates that the driver of the other vehicle
reported that a "blind spot prevented him [from] seeing" Claimant's car, there
is no indication as to what this blind spot was or by what it was caused (see
e.g. Hernandez v City of New York, 184 AD2d 378). Similarly, there is no
indication that the State had an opportunity to investigate the area near the
accident scene. As the bushes and shrubbery near the intersection are living
growing things, there is also no reason to believe that they are in the same
condition today as they were on the date of the accident. For this reason an
investigation at this point would be of little or no value in the defense of
this action. I find that Claimant has failed to demonstrate notice of the
matters asserted in the claim to Defendant, that the Defendant did not have an
opportunity to investigate the accident, and that the Defendant would be
substantially prejudiced in its defense of this action if the motion were to be
With regard to merit, unlike a party who has timely filed a claim, a party
seeking to file a late claim has the heavier burden of demonstrating that the
claim appears to be meritorious (see Nyberg v State of New York,
154 Misc 2d 199; Matter of Santana v New York State Thruway Auth.,
supra). However, there is nothing in Claimant'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]). "A general allegation of negligence
on the part of the State is insufficient to establish a meritorious cause of
action" (Witko v State of New York, 212 AD2d 889, 891).
Claimant makes the assumption that the other driver's "blind spot" was the
result of vegetation at or near the intersection that was poorly or improperly
maintained by Defendant. Claimant has failed to show any basis for this
assumption. As stated above, there is not a statement or even indication from
this other driver that the vegetation near the intersection is what caused his
"blind spot". In fact, the only mention of vegetation in any way relating to
the intersection comes from the Claimant who, in a simple affirmative response
to a leading question from counsel during his 50-h hearing, indicated that there
was shrubbery near the intersection. Neither the driver of the second car, nor
Claimant himself has ever indicated that the vegetation near the intersection
was overgrown, improperly maintained, or inhibited the intersection sight
distance in any way.
Even if both Claimant and the other driver involved in the accident had made
statements that it was the vegetation that created this "blind spot," some sort
of expert proof is required to demonstrate that the State failed to comply with
contemporary standards of highway design, maintenance, repair or upkeep
(Nyberg v State of New York, supra; Klinger v State of New York,
213 AD2d 378).
Finally, assuming, arguendo, that Claimant did otherwise demonstrate
merit to his action by submitting evidence that the vegetation near the
intersection created a hazard by inhibiting sight distance, he must still
demonstrate that Defendant had notice of the allegedly defective condition if
his claim is to be deemed meritorious. Claimant has made no showing that
Defendant had notice of the alleged defective condition. Without notice of the
alleged defect, either actual or constructive, Defendant can not be cast in
damages (compare Guido v State of New York, 248 AD2d 592; Cipriano v
State of New York, 171 AD2d 169).
Upon reviewing and balancing all of the factors enumerated in CCA §10(6),
I find that each factor weighs in favor of Defendant. Based upon the foregoing
it is hereby:
ORDERED, that Claimant's motion for permission to file a late claim in
this matter is denied.