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
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.