New York State Court of Claims

New York State Court of Claims

DOBBERT v. THE STATE OF NEW YORK, #2003-015-318, Claim No. None, Motion No. M-66046


Court granted late claim application to bird watcher injured in fall off roadway of Five Rivers Environmental Education Center.

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:
The Rutnik Law FirmBy: Michael P. Mansion, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 6, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movants' application for late claim relief pursuant to Court of Claims Act § 10 (6) is granted. The proposed claim (Exhibit B) seeks to recover for personal injuries sustained by Mary E. Dobbert on July 20, 2000 at approximately 7:30 p.m. at Five Rivers Environmental Education Center, in the Town of Bethlehem, Albany County. At the time of her injury Mrs. Dobbert was bird watching when she stepped backward and fell off the shoulder of the roadway onto a guardrail pillar. The pillar was allegedly in a state of disrepair and gave way causing the movant to fall into a steep culvert where she sustained injuries to her ribs, legs and lower back. Francis Dobbert's proposed claim is derivative only.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

The motion filed on November 14, 2002 is timely in that a personal injury claim arising from the allegedly negligent maintenance of the guardrail is governed by the three year Statute of Limitations set forth in CPLR § 214 (5).

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

Movants suggest without specifically alleging that the delay in filing the claim stemmed from their unsuccessful attempts to resolve this matter without litigation (see, movants' joint affidavit, paras 5 and 6). It is settled that a movant's anticipation that a negotiated settlement would be achieved is not a reasonable excuse for untimely filing (Society of N.Y. Hosp. v State of New York, 21 AD2d 733; lv denied 14 NY2d 490; Professional Charter Services, Matter of v State of New York, 166 Misc 2d 306). No other excuse has been offered and this factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movants allege that Mary Dobbert's accident was reported promptly after its occurrence and that a written supervisor's investigation form concerning the incident was prepared by Craig D. Thompson on July 21, 2000 (see, Exhibit A). Movants further allege that they were contacted by the New York State Department of Environmental Conservation Division of Legal Affairs within five days of the date of Mrs. Dobbert's injury (see, Exhibit A, letter of Leatha L. Lawrence).

These unrefuted allegations demonstrate that the State received timely notification of the essential elements of the claim and was afforded an opportunity to investigate the circumstances underlying the incident. As a result it does not appear that the State was prejudiced by the movants' delay in filing and serving the claim and the factors of notice, opportunity to investigate and lack of prejudice favor granting the motion (Lockwood v State of New York, 267 AD2d 832, 833).

As to the issue of merit, the proposed claim appears to present a potentially viable cause of action for negligently caused personal injury. In order to establish a meritorious claim it is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid claim exists (see, Rosenhack v State of New York, 112 Misc 2d 967; Santana, Matter of, v New York State Thruway Auth., 92 Misc 2d 1). In the Court's view movants have met that burden.

As to the final factor, it does not appear that movants have any other legal remedy available under the circumstances and this factor weighs in favor of granting the application.

Movants are directed to file a verified claim with the Chief Clerk of the Court and to serve a copy thereof upon the Attorney General either personally or by certified mail, return receipt requested as provided in Court of Claims Act § 11 (a) (i) within 30 days of service upon movants' counsel of a copy of this decision and order. The caption of said claim shall read "Mary E. Dobbert and Francis Dobbert v State of New York."

March 6, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 14, 2002;
  2. Affidavit of Michael P. Mansion sworn to October 28, 2002 with exhibits;
  3. Affidavit of Mary E. Dobbert and Francis Dobbert sworn to October 28, 2002;
  4. Affirmation of Saul Aronson dated January 27, 2003.