New York State Court of Claims

New York State Court of Claims



Claimant failed to demonstrate that its proposed claim was meritorious. Its motion for permission to file a late claim is denied.

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:
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 23, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 7, were read on motion by Claimant for an order permitting Claimant to file a late claim:
1) Notice of motion, filed May 9, 2002;
2) Affidavit of Jill Arnold, sworn to April 30, 2002, with attached exhibits;
3) Affirmation of Eric D. Handelman, Esq., dated May 7, 2002, with attached exhibits;
4) Affidavit in Opposition of Richard B. Friedfertig, Esq., sworn to June 3, 2002;
5) Affidavit of Harvey Schoenthal, sworn to May 30, 2002;
6) Reply-Affirmation of Eric D. Handelman, Esq., affirmed June 19, 2002;
7) Affidavit of Mohanakrishnan Menon, sworn to June 14, 2002.

Upon the foregoing papers and upon oral argument of counsel for the parties, the motion is denied. This is Claimant Nationwide Insurance's motion for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). On December 31, 2000, Claimant's insured, Mohanakrishnan Menon ("Menon") was in an accident involving a New York State owned and operated a snowplow in the westbound lanes of I-290, east of the Main Street exit in the Town of Amherst, County of Erie. According to Claimant, the snowplow operator, Harvey Schoenthal ("Schoenthal"), initiated an unsafe lane change, struck the Menon vehicle and caused damages to that vehicle in the amount of $6,129.13. On April 2, 2001, Claimant served a "Notice of Claim," intended to be a notice of intention to file a claim, upon the State Thruway Authority. However, Claimant did not file and serve a claim, or serve a notice of intention to file a claim upon the Attorney General's Office within 90 days of the accident, as required by CCA §§ 10 and 11, 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 only on the first and last factors, asserting that Claimant has failed to offer a legally cognizable excuse for the delay in filing the claim and that the proposed claim lacks merit.

This motion was filed approximately sixteen and a half months after Claimant's insured's accident. Claimant admits that it failed to properly serve a notice of intention to file a claim upon the Attorney General. 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 (id.).

Of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant. It would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

During the very informative and well presented oral argument on this matter, Defendant asserted that, although the proposed claim may indicate a reason to believe that Defendant was negligent, Vehicle and Traffic Law § 1103(b) provides that the State is not liable for simple negligence in circumstances such as these. Rather, the State can only be liable when the higher standard of "reckless disregard" has been demonstrated. Defendant maintains that Claimant has offered no evidence of reckless disregard for the safety of others.

Claimant's counsel argued that the higher "reckless disregard" standard is not applicable in this instance as Schoenthal was not "actually engaged in work on a highway" at the time of the accident, as required by the statute. Alternatively, counsel for Claimant pointed out that, even if the higher standard was applicable, reckless disregard has been alleged in the proposed claim. Counsel argues that it should be permitted to file its claim and conduct discovery to determine if it can find support for its reckless disregard allegation.

In relevant part, Vehicle and Traffic Law § 1103(b) provides:
Unless specifically made applicable, the provisions of this title . . . shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway . . . . The foregoing provisions of this subdivision shall not relieve any person, or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway from the . . . consequences of their reckless disregard for the safety of others.
The interpretation and application of this statute have been the subject of much debate. Its ambiguity has led some courts to determine that the reckless disregard standard is not applicable to snowplow operators (see Cottingham v State of New York, 182 Misc 2d 928). However, I find that the current state of the law, at least in the Fourth Judicial Department, does require that this higher standard be applied in situations such as this (Wilson v State of New York, 269 AD2d 854; Gawelko v State of New York, 184 Misc 2d 581 (providing a thorough analysis of the Cottingham decision).

Moreover, I find that, as a matter of law, Schoenthal was "engaged in work on a highway," even though he was not actually plowing snow at the time of the accident. A very similar factual scenario was addressed by Judge Collins in McDonald v State of New York (176 Misc 2d 130). In that case, an accident occurred when a snowplow operator struck the claimant's car while attempting to make a U-turn. There, claimant's counsels argued that, because the snowplow operator was not actually plowing snow at the time, the snowplow operator was not "engaged in work on a highway," as stated in the statute. Judge Collins found that the operator, who made the U-turn "halfway through completing her plowing ‘beat'," was engaged in the process of snow removal and therefore entitled to the protection of the higher reckless disregard standard (176 Misc 2d at 141). I find that the reckless disregard standard is also applicable in this matter.

The question then is: Has Claimant come forth with evidence of reckless disregard sufficient to demonstrate a meritorious cause of action? Claimant's argument that the motion should be granted to afford it an opportunity to complete discovery on this issue is attractive but, in the end, unavailing. 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., 92 Misc 2d 1). Though such an argument may be sufficient to defeat, at least temporarily, a motion for summary judgment after a timely filed claim, it will not support a late claim application where the burden is on the claimant. There is no other indicia of recklessness, for example, that other people saw erratic driving, that the driver was intoxicated, or that the driver was operating the plow at a tremendous speed. There is simply nothing that indicates that the snowplow operator intentionally committed "an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow, and done with conscious indifference to the outcome" (Szczerbiak v Pilat, 90 NY2d 553, 557). There has been no evidence whatsoever of an intent to disregard a known risk. Schoenthal indicated in his affidavit that his lights were on, that he checked his mirrors, and turned on his signal before attempting his turn (Schoenthal affidavit, paragraph 7). As in McDonald, the driver made an "improvident determination to attempt a . . . turn," but there is certainly no indication that he acted with reckless disregard (176 Misc 2d at 143). I find that, at most, Claimant has demonstrated a momentary lapse in attentiveness on the part of the snowplow operator. This may indicate negligence, but not reckless disregard.

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), I find that they weigh 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.

September 23, 2002
Rochester, New York

Judge of the Court of Claims