New York State Court of Claims

New York State Court of Claims

GUTIERREZ v. THE STATE OF NEW YORK, #2003-010-013, Claim No. NONE, Motion No. M-66409


Synopsis


Claimant's application for leave to serve and file a late claim is granted.

Case Information

UID:
2003-010-013
Claimant(s):
GLORIA GUTIERREZ
Claimant short name:
GUTIERREZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-66409
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
RICHARD J. KATZ, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 3, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimant's application for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.........................1

Defendant's Affirmation in Opposition......................................................................2

Reply Affirmation and Exhibits..................................................................................3

The proposed claim alleges that on September 20, 2002 at 12:08 p.m., claimant's car was stopped at a traffic light when she was struck in the rear by a car owned by the State and operated by its employee David Bennett, Jr., in the course of his employment (Reply, Ex. A). The accident occurred on Westchester Avenue, 500 feet east of Lincoln Avenue in the Village of Rye Brook. Claimant submits her own affidavit, a police accident report (Ex. A, B), an MRI report (Reply, Ex.B), an operative report of a left shoulder arthroscopy for a rotator cuff tear (Reply, Ex. C), and a medical report of a doctor who examined claimant on March 5, 2003 (Reply, Ex. D).

Court of Claims Act §10(6) requires that the Court consider, among other relevant factors: (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 presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Claimant offers no excuse for the delay; however, the presence or absence of any one factor is not determinative (id.) Most significantly, claimant has shown the claim's appearance of merit (see Mangum v Trabulsi, 294 AD2d 472; Girolamo v Liberty Lines Tr., 284 AD2d 371). Also, claimant may not have another available remedy and defendant has failed to demonstrate any significant prejudice.

Upon consideration of all the relevant factors, the Court GRANTS claimant's motion for leave to file and serve a late claim in the same form as the Amended Verified Claim (Reply, Ex. A) in compliance with the provisions of the Court of Claims Act within 30 days of receipt of a filed copy of this Decision and Order.

It is noted that the Court's conclusion with regard to the appearance of merit is limited to this Decision and Order; a greater burden of proof rests upon claimant to prevail at trial.


June 3, 2003
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims