New York State Court of Claims

New York State Court of Claims

ALLSTATE v. NEW YORK STATE THRUWAY AUTHORITY, #2003-029-323, Claim No. 103853


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:
Carl S. Young & Associates
By: John G. Molloy, P.C.By: Francis J. Burke, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 29, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 Authority.

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) is denied.

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 or agents.

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.

October 29, 2003
White Plains, New York

Judge of the Court of Claims