New York State Court of Claims

New York State Court of Claims

ALVARADO v. THE STATE OF NEW YORK, #2003-019-534, Claim No. NONE, Motion No. M-66344


Claimant's motion for permission to file a late claim relative to automobile collision with State Troop vehicle is granted.

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:
OSHMAN, HELFENSTEIN & MIRISOLA, LLPBY: David L. Kremen, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
March 31, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-66344, dated January 31, 2003, and filed January 31, 2003.
  2. Affirmation of David L. Kremen, Esq., in support of motion, dated January 31, 2003, with attached exhibits.
  3. Proposed Claim, dated January 31, 2003.
  4. Affidavit of Antonio Alvarado, in support of motion, sworn to January 23, 2003.
  5. Affirmation of Barry Scheinfeld, M.D., in support of motion, dated January 29, 2003.
  6. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated February 19, 2003, and filed February 24, 2003, with attached exhibits.
  7. Affidavit of Brendan M. Dillon, in opposition to motion, sworn to February 19, 2003.
  8. "REPLY AFFIRMATION AND MEMORANDUM", of David L. Kremen, Esq., in support of motion, dated March 7, 2003, and filed March 7, 2003.
This proposed claim arises from a three-car accident that occurred on June 19, 2002 involving a vehicle being operated by a State Trooper, Brendan M. Dillon, and two civilian vehicles, one of which was owned and operated by Claimant herein. On the day of this accident, at 8:45 p.m., Trooper Dillon was on duty operating a marked State Troop vehicle when he received a radio message to assist another Trooper on a "violent domestic call" at a location approximately 15 miles from his location at the time. (State's Exhibit A, ¶ 2). Trooper Dillon entered State Route 17B, which is mostly a two-lane roadway, traveling westbound. Trooper Dillon observed a line of traffic in front of him and engaged his overhead emergency red lights and siren. The following sequence of events are best taken directly from Trooper Dillon's affidavit:
I could see a black sedan in front of the line of traffic. I lost sight of this black sedan as the roadway entered a hilly section. When I was able to again see the black sedan it's brake lights were being applied off and on and it was slowing down. I began to pass this black sedan. I was approximately four (4) car lengths behind the black sedan and my vehicle was straddling the double yellow line when I noticed the black sedan had put on it's left turn signal on [sic]. We were approaching a crest of a hill at the intersection of State Route 17B and Kitz Road. Kitz Road entered 17B on the left.
In the eastbound lane of State Route 17B, which was on coming traffic, a pick up truck was approaching. This portion of State Route 17B had a second lane eastbound because of the hill. The pickup truck was in the passing lane closes [sic] to me. There was no vehicle in the eastbound driving lane. I attempted to swerve left into the driving lane of the oncoming traffic but when the operator of the pickup had seen me approaching, he also started to move into the driving lane. We both reacted and attempted to avoid each other but my vehicle became broadside and the pickup truck collided head-on into the passenger side of my vehicle. My vehicle continued into the intersection of Kitz Road with State Route 17B. A third vehicle, which was entering State Route 17B from Kitz Road was hit by my police vehicle before my vehicle came to rest. My vehicle was on fire and I was able to get out....

(State's Exhibit A, ¶ ¶ 4 & 5; emphases added).

As described above, the collision between Trooper Dillon's vehicle and Claimant's vehicle was actually the second impact following the initial impact between Trooper Dillon's vehicle and the pickup truck.

The Court notes as a threshold issue that it has jurisdiction to review and determine this motion since it was filed within three years from the date this claim accrued which is the comparable time period for bringing negligence actions against a citizen of the state. (CPLR 214).

The factors that the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,
5. 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

6. there is any other available remedy.

Whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, a claimant must show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe a valid claim exists. (Id. at 11). While this standard clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case. (Id. at 11-12).

There can be no dispute here that the applicable standard of care at trial will be that of reckless disregard as set forth in Vehicle and Traffic Law 1104.[1] Reckless disregard has been defined as when "'[t]he actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow' and has done so with conscious indifference to the outcome (Prosser and Keeton, Torts § 34, at 213 [5th ed]; see, Restatement [Second] of Torts § 500)." (Saarinen v Kerr, 84 NY2d 494, 501). As such, the primary question on this motion thus becomes whether there is any evidence tending to support Claimant's theory that Trooper Dillon's alleged conduct rises to the level of reckless disregard. Cases involving 10 (6) applications within the context of the reckless disregard standard are few and far between. (Nationwide v New York State Thruway Auth., Ct Cl, September 23, 2002, Minarik, J., Motion No. M-65187 [UID No. 2002-031-046] ["no evidence whatsoever of an intent to disregard a known risk"][2]; Nationwide Insurance v State of New York, Ct Cl, August 21, 2002, Lebous, J., Claim No. 105768, Motion No. M-65411 [UID No. 2002-019-564] [accepting factual allegations set forth by Claimant Court found appearance of merit]; see also, Bliss v State of New York, 95 NY2d 911 [denial of summary judgment on reckless disregard standard]).

Here, Trooper Dillon concedes that his line of sight was limited as he "[l]ost sight of this black sedan as the roadway entered a hilly section." (State's Exhibit A, ¶ 4). Despite this limited sight line, Trooper Dillon avers that he continued to straddle the double center yellow line at the crest of a hill and attempted to pass the black sedan with his Troop vehicle on this two-lane roadway as he approached an intersection. Also, when Trooper Dillon saw a vehicle slowing down in front of him with a left turn signal activated, he attempted an evasive maneuver to the left into a blind oncoming traffic lane instead of stopping or moving to the right. Moreover, the Court notes that there is no proof relative to the rate of speed of Trooper Dillon's vehicle at this time.[3]

In sum, based upon the foregoing, this Court cannot definitely conclude that Trooper Dillon's conduct amounted only to negligence and not reckless disregard, particularly in relation to the concessions by the Trooper that his vehicle was attempting to overtake a vehicle while straddling a double yellow line on a two-lane roadway as he crested a hill with limited sight distance while approaching an intersection. Based on this record, this Court finds that Claimant has established the proposed claim appears meritorious within the meaning of CCA 10 (6), especially in view of the minimal burden applicable on late filing motions.

With respect to the remaining factors, Claimant offers two excuses, including that he was unaware of the seriousness of his injury until late 2002, as well as his general ignorance of the specific requirements of the CCA. The Court agrees with the State's observation that Claimant's medical examinations as early as June and August of 2002 indicated the seriousness of his injuries. Rather, the Court finds that the true nature of Claimant's excuse was his ignorance of the law which has been deemed to be an unacceptable excuse. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). The Court finds that this factor weighs against Claimant.

With respect to the factors of notice of the essential facts and opportunity to investigate, Claimant points to the actual notice and investigation undertaken by the State as evidenced by the related police accident report. The State's response to this argument is that it "takes no position" on these issues. The Court finds that the State's "no position" stance is nothing more than a euphemism for a concession on those points. Moreover, the Court notes that the notice requirement under CCA 10 (6) is not notice of possible litigation, but rather notice of the essential facts which the State does not dispute. (Matter of Crawford v City Univ. of N. Y., 131 Misc 2d 1013, 1015). The State does not address the issue of substantial prejudice. The Court finds a total lack of prejudice since it appears that the key individuals are still available. The Court finds these three factors weigh in Claimant's favor.

The final factor for review is whether Claimant has any other alternate remedy. Claimant argues he has none, while the State points to the possibility of litigation against the driver of the so-called "black sedan". The State does not indicate, however, whether the owner or operator of that vehicle has ever been identified. As such, the Court finds such a possible remedy too tenuous and finds this factor also weighs in Claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that five of the six factors, including the all-important factor of merit, weigh in Claimant's favor.

Accordingly, for the reasons stated above, IT IS ORDERED, that Claimant's motion, Motion No. M-66344, for permission to permit the late filing and service of a claim is GRANTED. Claimant shall file a claim with the Clerk of the Court and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Decision & Order. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court including CCA 10, 11, and 11-a.

March 31, 2003
Binghamton, New York

Judge of the Court of Claims

Vehicle and Traffic Law 1104 (e) states "[t]he foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others."
Unreported Decisions from the Court of Claims are available via the internet at
Claimant argues that "Trooper Dillon was obviously traveling in excess of the speed limit", but is unable to identify an actual rate of speed. (Reply Affirmation, ¶ 6). This is also consistent with the goal of Trooper Dillon to assist a fellow trooper on what are often the most threatening of all police emergency calls - a violent domestic dispute.