New York State Court of Claims

New York State Court of Claims

ANADIO v. THE STATE OF NEW YORK, #2002-032-032, , Motion No. M-65975


Synopsis


Motion for permission to late file is granted on this second application, because the supporting papers now contain enough information for the statutory factors to be properly considered.


Case Information

UID:
2002-032-032
Claimant(s):
ELLEN L. ANADIO and RALPH C. ANADIO
Claimant short name:
ANADIO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-65975
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Anderson, Moschetti & TaffanyBy: David J. Taffany, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney General
By: Saul Aronson, Esq., Assistant Attorney GeneralOf Counsel
Third-party defendant's attorney:

Signature date:
March 31, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

By a decision and order dated September 4, 2002, this Court denied movants' motion for permission to file an untimely claim (Motion No. M-65109). The proposed claim alleged that claimants were injured in a two vehicle accident in the Village of Galway caused by a non-working traffic light that had been out of service due to a power outage in the area. In determining a motion for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 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 to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the claimant has another available remedy. The Court in the exercise of its discretion balances these factors. The presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

In the earlier decision, it was determined that movants had failed to present an acceptable excuse for delay and that it was unclear whether they had an alternative remedy, by way of suit against the driver of the other vehicle. In addition, it was noted that defendant had failed to object to the motion based on the interrelated factors of notice, opportunity to investigate, and prejudice. On the issue of merit, however, the Court observed:
The palpable flaw of the proposed claim is its lack of specificity. It does not set forth the particular act or omission on which the State's liability is premised, nor does it establish the causal connection between the alleged wrong and the claimant's injury (see generally, Berry v State of New York, 115 AD2d 153; Sevillia v State of New York, 91 AD2d 792). Was defendant responsible for the power outage? Was the power outage caused by some other entity or event, but defendant was nevertheless negligent in failing to become aware of the malfunction and take appropriate action? The factual allegations contained in the proposed claim (the accident occurred at an intersection where the traffic light was not working; the light had not been working for several hours; and the cause of the light's malfunction was a power outage) do not provide "reasonable cause to believe that a valid cause of action exists" against defendant (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11, supra).

(Slip opn at 4 [citation omitted].)

In the instant motion, movants' failure to commence a timely claim is explained as resulting from the failure of movants' first attorney to accurately ascertain the entity responsible for the intersection in question. Exhibit A of the Taffany affirmation is a "Notice of Claim" against the County of Saratoga and the Saratoga Sheriff's Department. Movants apparently executed that notice in December 2001, and it was served on those two local defendants. Thereafter, it was learned that the County of Saratoga did not own or have responsibility for maintaining the intersection, and it was at that point that the initial motion to late file was made in this Court. Unfortunately, neither ignorance of the law (the claimant's or the attorney's) nor an attorney's inattention to the case provides an acceptable excuse for delay (see, e.g., Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854 [mistake as to proper entity to sue]; Sevillia v State of New York, 91 AD2d 792 [claimant initially hired out-of-state attorney who did not take proper action]; Donovan v New York State Teachers' Retirement System, 87 AD2d 664 [mistakenly commencing action in Supreme Court]; Royal Insurance Co. of Am. v State of New York, 149 Misc 2d 531 [proceeding in improper forum]).

The revised proposed claim does remedy, however, many of the defects of the previous proposed claim. It is now alleged that the power outage occurred at 10:30 A.M. when a dump truck traveling on Route 147 took down a telephone pole in a collision; that the State was responsible for managing and monitoring vehicular traffic at the location in question and that it maintained the traffic light at the intersection in question; that the State knew or should have known of the light's malfunctioning; that the collision involving claimants occurred at 6:15 P.M.; and that the State was negligent in failing to take steps to warn motorists of the malfunction and to properly control traffic during the intervening time. Unlike the much more cursory allegations contained in the earlier proposed claim, these allegations are sufficient to meet the two-fold test traditionally applied in these situations: "(1) [The claim] must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, 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, 11).

In weighing the statutory factors on this current motion, it is evident that movants still have failed to present an acceptable excuse for their delay, and defense counsel now argues that the delay has hampered defendant's ability to perform a timely investigation. On the other hand, while it is true that the existence of a report filed with the State does not automatically establish that there was sufficient notice (Sandlin v State of New York, 294 AD2d 723, [3d Dept 2002], lv denied NY2d ; Continental Ins. Co. v City of Rye, 257 AD2d 573, 574 [2d Dept 1999]), it may do so in some instances (Carmen v State of New York, 49 AD2d 965). It is highly unlikely that the State was unaware of movants' collision, since it followed another accident that had a major impact, resulting in a State road being closed and a power malfunction that lasted into the evening. Sufficient notice is provided when it is established either that supervisory level State officials were aware of an incident or that the incident is the kind of event that would, in the normal course, be investigated by supervisory officials (see e.g., Matter of Crawford v City University of New York, 131 Misc 2d 1013 [incident quickly brought to the notice of supervisory officials]; Avila v State of New York, 131 Misc 2d 449 ["actual notice of the essential facts constituting the claim had reached the supervisory level"]; Carmen v State of New York, 49 AD2d 965, 966 ["abundant notice" provided by a report, medical attention provided by a State employee, and filing a Workers' Compensation claim]; Espinal v State of New York, 159 Misc 2d 1051 [a prison assault that results in serious injury "gives notice of the injury and both opportunity and motivation for the State to investigate the underlying facts"]). Furthermore, the additional facts provided in the instant motion make it appear less likely that movants have a viable cause of action against the driver of the other vehicle. If the cause of the accident was that alleged by movants, then the other driver would have been no more at fault than were movants.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting movants' motion for permission to file a late claim. Movants are therefore directed to file and serve a claim identical to the proposed claim submitted in support of this motion and to do so in conformity with the requirements of Court of Claims Act §§ 10 and 11 within sixty (60) days after this order is filed.



March 31, 2003

Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on movants' motion for permission to file an untimely claim
1. Notice of Motion and Supporting Affirmation of David J. Taffany, Esq., with annexed Exhibits; Proposed Notice of Claim

2. Affirmation in Opposition of Saul Aronson, Esq., AAG, annexed Exhibits