This claim for property damage arises from an incident that occurred on
September 10, 1998 when claimant's subrogor was driving her vehicle across the
Tappan Zee Bridge. The trial of this action was bifurcated and this decision
deals only with the issue of liability.
When the case was called for trial, the defendant made an oral motion to
dismiss the claim on the basis that the claim fails to adequately describe the
accident as required by Court of Claims Act § 11 (b). The Court reserved
decision on the motion and directed the defendant to move upon papers after
conclusion of trial. Defense counsel complied with the Court's directive and
filed a motion to dismiss with the Clerk of the Court on September 29, 2003.
The motion was assigned Motion No. M-67466 and will be decided herein.
This claim was filed late by permission of the Court pursuant to Court of
Claims Act § 10 (6) (Allstate Insurance Company a/s/o Linda Schilt v New
York State Thruway Authority, Claim No. None, Motion No. M-62788, filed
January 29, 2001, Mignano, J.). The proposed claim, submitted with the §
10 (6) motion, alleged that on September 10, 1998 claimant's subrogor was
driving her vehicle across the Tappan Zee Bridge in Rockland County, New York,
when it was struck by paint that was dropped by bridge workers. The proposed
claim sought damages for property damage to the vehicle.
In granting the motion, I stated:
"Therefore, within sixty (60) days of the date of filing of this order, movant
shall file its proposed claim with the Court and serve the Attorney General and
NYSTA by certified mail, return receipt requested, a copy of said
‘proposed claim'. Movant is directed to follow all of the requirements of
the Court of Claims Act and the Uniform Rules for the Court of Claims when it
serves and files its claim. Movant is also advised to amend the caption to
reflect NYSTA, as the properly named defendant" (id. at Page 5).
Claimant complied with the Court's order and filed its claim on February 20,
2001. The claim was also served upon the Attorney General and the Thruway
Pursuant to Court of Claims Act § 11 (b) a claim must set forth the time
and place where the claim arose and the nature of the claim. While Court of
Claims Act § 11 (b) does not require "absolute exactness" it requires a
statement made with "sufficient definiteness to enable the State to be able to
investigate the claim promptly and to ascertain its liability under the
circumstances. The statement must be specific enough so as not to mislead,
deceive or prejudice the rights of the State. In short, substantial compliance
with section 11 is what is required" (Grumet v State of New York, 256
AD2d 441, 442; Heisler v State of New York, 78 AD2d 767).
Here, the claim asserts that the incident occurred on September 10, 1998 as the
claimant's subrogor was traveling in her car across the Tappan Zee Bridge in
Rockland County when, as a result of the defendant's negligence, the car was
struck by paint that was dropped by bridge workers. In opposing the motion for
permission to file a late claim, the defendant did not assert a lack of notice,
an inability to investigate the incident or that it would be prejudiced by the
late filing of the claim.
The Court finds that the claim meets the requirements of Court of Claims Act
§ 11 (b). It is specific enough not to mislead, deceive or prejudice the
rights of the State and to afford the defendant a reasonable opportunity to
investigate. Therefore, the defendant's motion to dismiss (Motion No. M-67466)
At trial, claimant's subrogor, Linda Schilt, testified that at about 8:45 a.m.
on September 10, 1998 she was traveling across the Tappan Zee Bridge westbound
from Westchester County to Rockland County in her 1997 white Nissan Maxima
automobile. She stated that as she crossed the bridge she noticed workers on
the superstructure of the bridge above the roadway. As she proceeded under the
superstructure, a substance which she later determined was paint landed on her
car and windshield. Ms. Schilt stated that when she reached the western end of
the bridge she pulled off the roadway, got out of her car and saw drops of paint
of the same silver color as the superstructure all over her car. She stated
that several other cars also pulled off the roadway where she did and she saw
silver paint on those cars as well.
Ms. Schilt further testified that she went to an auto body shop, received a
repair estimate and submitted the estimate to claimant, her insurer. She
testified that she received a check from claimant for the amount of the estimate
less her deductible.
At the conclusion of claimant's direct case, the defendant moved to dismiss on
the basis that claimant failed to establish a prima facie case of negligence.
The Court denied the motion and the defendant rested.
The Court finds, based upon a preponderance of the credible evidence, that
claimant's insured's vehicle was damaged by silver paint as a result of
defendant's negligence. While the evidence did not establish conclusively that
the silver paint on Ms. Schilt's vehicle came from defendant's employees' paint
cans, claimant did establish that the property damage was more likely than not
caused by defendant's negligence. Presumably, no other entity was painting the
Tappan Zee Bridge on September 10, 1998. Thus, it is entirely reasonable to
conclude that the source of the paint in question was defendant, its employees
A claimant need not exclude all other possible causes of an incident but must
proffer sufficient credible evidence that a reasonable fact finder might
conclude his or her injuries were more probably than not caused by the
defendant's negligence (Natale v Niagara Mohawk Power Corp., 135 AD2d
955). Claimant, in this case, has fulfilled its burden of proof.
The Court finds the New York State Thruway Authority to be fully responsible
for the subject incident. The Chief Clerk is directed to enter an interlocutory
judgment in favor of claimant and against the defendant.
Upon the filing of this decision the Court will set this matter down for trial
on the issue of damages as soon as practical. After consulting with each other,
counsel for both sides are hereby directed to contact the Court, within 30 days
of receipt of this filed decision, to establish a conference date regarding
outstanding discovery matters with respect to the issue of damages.