New York State Court of Claims

New York State Court of Claims

STATE FARM v. THE STATE OF NEW YORK, #2003-030-909, Claim No. 107924, Motion Nos. M-67153, CM-67439


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:
Serpe, Andree & Kaufmanby Cynthia G. Gamana, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 7, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on defendant's motion to dismiss and

claimant's cross-motion for permission to file a late claim: Notice of Motion, Affirmation and

Exhibits; Notice of Cross-Motion, Affirmation and Exhibits, Affirmation in Opposition.

Claimant seeks $5,189.95 in damages arising out of property damage sustained to its subrogor's automobile in a December 26, 2002 accident with a vehicle driven by one Thurston Culley and owned by the State Office of Mental Retardation and Developmental Disabilities (OMRDD). The instant claim (improperly denominated a "complaint"), was filed on June 25, 2003 and served on the Attorney General on June 26, 2003. Since both of these dates are more than 90 days after accrual of the claim, and since no notice of intention to file a claim was served on the Attorney General within such period, defendant's motion to dismiss the claim for lack of jurisdiction must be, and hereby is, granted (Court of Claims Act § 10[3]).

Seeking the court's permission to file a late claim pursuant to Court of Claims Act §10(6), claimant advises that, beginning in January 2003, it corresponded with a firm known as Cool Risk Management, which describes itself as "the Claims Administrator for the State of New York," in an effort to resolve its claim without litigation. Based on its position that the accident was the fault of the driver of claimant's vehicle, Samantha Zazzi, the claim was denied. Subsequently, in April 2003, the State made a claim against claimant for the damage to its property sustained in the subject collision.

As noted, claimant did not attempt to proceed in this court until June 2003, by which date relief pursuant to Court of Claims Act section 10(6) was necessary. That statute grants the court the discretion to allow the filing of a late claim upon consideration of all relevant factors, including whether claimant's delay was excusable, whether defendant had timely notice of the facts constituting the claim, whether defendant had the timely opportunity to investigate, whether defendant would suffer substantial prejudice should late filing be allowed, whether the proposed claim appears meritorious and whether claimant has an alternate remedy (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Although claimant's delay was clearly not excusable, particularly since defendant's claims adjuster denied its claim approximately one month after the accident, such is but one factor to consider. It is clear that defendant had timely notice of the relevant facts, that its agent investigated the incident and that it would suffer absolutely no prejudice should late filing be allowed.

The driver of claimant's vehicle has submitted an affidavit in which she states that defendant's driver made a sudden right turn on a red light and collided with her vehicle, which had the right of way. Defendant's driver apparently told the officer who completed the accident report that he proceeded when his light turned green and claimant's driver apparently told the officer that her light was yellow when she proceeded through the intersection. Claimant's burden on this motion is to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is reasonable ground to believe that a cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Notwithstanding the presence of a sharp issue of fact, claimant's allegations under these circumstances are accepted as true and it would not be proper to engage, as defendant suggests, in a trial of the merits on this preliminary motion (see, Marcus v State of New York, 172 AD2d 724).

With respect to the possibility of an alternate remedy, the court does not agree with defendant's suggestion that the availability of a Supreme Court action against defendant's employee (see, Morell v Balasubramanian, 70 NY2d 297) militates against granting this motion and specifically does not comprehend how the litigation of this $5,189.95 property damage claim in that forum instead of in the Court of Claims would be in defendant's, or anyone's, interest.

Finally, the court does not agree with defendant's contention that the proposed claim is "insufficiently definite ‘to enable the State * * * to investigate the claim[s] promptly and to ascertain its liability under the circumstances,' " (Lepkowski v State of New York __ NY2d __, 2003 WL 22966866 (NY), 2003 NY Slip Op. 19676, citing Heisler v State of New York, 78 AD2d 767) or that the submission of repair bills was required or would add anything to the court's consideration of the matter.

Accordingly, the claimant's cross motion is granted, with the proviso that paragraph 3 of the proposed claim be changed to indicate the correct driver. Claimant is directed to serve and file its claim, in accordance with the relevant provisions of the Court of Claims Act and Rules, particularly with respect to manner of service and payment of a new filing fee, within 30 days of the filing date of this decision and order.

January 7, 2004
White Plains, New York

Judge of the Court of Claims