New York State Court of Claims

New York State Court of Claims

COOPER v. THE STATE OF NEW YORK, #2003-031-055, Claim No. None, Motion No. M-66305


Claimant, injured in a motorcycle accident at Artpark, failed to demonstrate either an adequate excuse for his delay or a meritorious claim. His motion for permission to file a late claim is denied.

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:
Defendant's attorney:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 28, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 9, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed January 23, 2003;
2. Affidavit of Edward P. Perlman, Esq., sworn to January 21, 2003, with attached exhibits;
3. Affidavit of Donald G. Cooper, sworn to January 20, 2003;
4. Affidavit of Kathleen M. Cooper, sworn to January 21 2003:
5. Claimant's Memorandum of Law, dated January 21, 2003;
6. Affidavit in Opposition of Gregory P. Miller, Esq., sworn to April 21, 2003, with attached exhibits;
  1. Affidavit of James F. Leavy, sworn to April 18, 2003;
8. Affidavit of Thomas Welch, sworn to April 18, 2003;
9. Affidavit of Joseph Mutidjo, sworn to April 18, 2003. This is the motion of Donald G. Cooper for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). In his proposed claim, Mr. Cooper alleges that, on August 25, 2002, he was injured in a motorcycle accident at Artpark, a facility owned and operated by Defendant and located in Lewiston, New York. Claimant alleges that he had been at Artpark on that day, with several members of his family, to attend a motorcycle show and blues festival. After the event, he was leaving the facility and traveling on his motorcycle along a narrow cobblestone access road within the park. Riding adjacent to him, on his own motorcycle, was Claimant's son. Claimant's wife and his daughter-in-law were behind the motorcycles and walking in the same general direction. Claimant alleges that, as he rounded a "blind curve" in the service road, he suddenly encountered a state owned and operated vehicle known as a viewmobile. This vehicle was used by Park employees to transport guests to different areas within the Park.

Claimant alleges that, as he rounded the turn, he was forced off the service road by the viewmobile, which occupied most of the narrow service road. After veering off the road, Claimant collided with a trash receptacle and sustained injuries.

Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

In its opposition to this motion, Defendant disputes only factors 1 (excuse for the delay) and 6 ( merit), appropriately conceding that factors 2, 3, 4, and 5 weigh in Claimant's favor. With regard to his excuse for the delay, Claimant asserts that he was generally incapacitated after the accident and, except for doctors appointments and such, generally stayed in his house until shortly before his motion was filed. Claimant does not assert that he was either fully hospitalized or completely incapacitated, and has submitted no supporting documentation from any of his health care providers. This factor, therefore, weighs in favor of Defendant.

Defendant argues with regard to merit that Claimant was injured as a result of his own negligence and not through any negligence on the part of an employee or agent of the State. The accident report prepared by the New York State Parks Police (Claimant's Exhibit B) demonstrates that Claimant was "observed with bloodshot, glassy eyes, a strong odor of alcholic (sic) beverage and slurred speech." Claimant later refused a blood test and was arrested for driving while intoxicated. Claimant's submission offers no indication of the resolution of any charges against him.

Further, the affidavit of the viewmobile driver, Joseph Mutidjo, indicates that just before the accident, he saw Claimant approaching the viewmobile and he pulled the viewmobile off of the service road and came to a complete stop to allow Claimant to drive by. Mr. Mutidjo estimates that Claimant was traveling at approximately 40 miles per hour when Claimant passed him. Mr. Mutidjo also states in his affidavit that Claimant did not veer off of the service road until he was already past the viewmobile.

Defendant has also submitted several photographs and the affidavits of State Parks Police Sergeant James F. Leavy, and the Park Manager of Artpark, Thomas Welch. These documents contradict the Claimant's allegations that the service road was either too narrow or contained a "blind" curve, which would have prevented Claimant from seeing the viewmobile as he approached. Sergeant Leavy also indicates that, during his investigation of the accident scene shortly after the accident occurred, he was unable to find any indication that Claimant had engaged his brakes prior to his collision with the trash receptacle.

Further, notably absent from Claimant's submission, is an affidavit from his son, who was purportedly driving next to Claimant when the accident occurred and who apparently had no problem negotiating the turn in the access road. Claimant's wife also concedes that she did not see the accident itself, but came upon the scene only afterwards.

The most important factor in determining a late file motion is whether the claim has the appearance of merit. It would be of no benefit to permit a claim without the appearance of merit to be filed even if the other factors enumerated in Court of Claims Act § 10(6) supported the granting of the motion (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967). It is also noteworthy that a late file motion is within the sound discretion of the court (Ledet v State of New York, 207

AD2d 965; Scarver v State of New York, 233 AD2d 858). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Witko v State of New York, 212 AD2d 889; Nyberg v State of New York, 154 Misc 2d 199). Furthermore, when there are facts before the Court directly contradicting Claimant's version of the events, as is the case here, it is incumbent upon the Court to determine the credibility of the proposed claim in determining whether the claim has the appearance of merit. For the reasons set forth above, I have serious doubts as to the credibility of this claim and, consequently, I find that Claimant has failed to demonstrate that his proposed claim has merit. This factor therefore weighs in Defendant's favor.

Upon weighing all of the factors enumerated in CCA § 10(6), I find that they weigh in Defendant's favor.

Accordingly, it is

ORDERED, that Claimant's motion is denied.

July 28, 2003
Rochester, New York

Judge of the Court of Claims