New York State Court of Claims

New York State Court of Claims

MURTIFF v. THE STATE OF NEW YORK, #2003-031-058, Claim No. None, Motion No. M-66652


Synopsis


Claimants have failed to demonstrate merit to their proposed claim. Their motion for permission to file a late claim on their own behalf is denied. Claimants' motion for permission to file a late claim on behalf of their infant daughter is denied as unnecessary.

Case Information

UID:
2003-031-058
Claimant(s):
HOLLY A. MURTIFF and ROBERT C. MURTIFF, Individually, and as parents and natural guardians of RACHEL R. MURTIFF
Claimant short name:
MURTIFF
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-66652
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
EUGENE C. TENNEY, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 20, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers, numbered 1 to 5, were read on motion by Claimants for permission to file a late claim:
1. Claimants' Notice of Motion, filed April 7, 2003;
2. Affidavit of Eugene C. Tenney, Esq., sworn to April 3, 2003, with attached exhibits;
3. Affidavit of Holly A. Murtiff, sworn to April 15, 2003;
4. Affidavit of William D. Lonergan, Esq., sworn to April 18, 2003;

5. Affidavit of Eugene C. Tenney, Esq., sworn to April 25, 2003, with attached exhibit. This is the motion of Holly A. and Robert C. Murtiff, individually and as parents and natural guardians of Rachel R. Murtiff, for permission to file a late claim pursuant to §10(6) of the Court of Claims Act (the "CCA"). The proposed claim alleges that, on November 4, 2002, Holly A. Murtiff and her twelve year old daughter, Rachel R. Murtiff, were both seriously injured in a motor vehicle accident which occurred on Route 39 in the Town of Concord, New York. Robert Murtiff's proposed claim is derivative in nature. Claimants allege that the accident was caused by the negligence of Defendant in failing to properly clear snow, slush, and ice from the roadway, and in failing to properly apply salt or sand to the roadway.

The motion regarding Claimants' daughter, who was 12 years old at the time of the accident, is unnecessary. As a minor, Rachel Murtiff is under a legal disability as defined by CPLR § 208. Pursuant to CCA § 10(5): If the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." The Court of Appeals determined in Henry v City of New York (94 NY2d 275, 279 - 280) that an infant Claimant's time to file and serve a claim is tolled during that child's infancy, and that this tolling is not terminated by the acts of a guardian or legal representative in taking steps to pursue the infant's claim.

It is worth noting that, in the context of a claim under General Municipal Law, there is authority for the proposition that Henry did not obviate the need for a late claim motion if a timely notice of claim was not filed (see e.g. Harris v City of New York, 297 AD2d 473; Rodriguez v New York City Health and Hosps. Corp., 270 AD2d 110). However, in that context, the notice of claim is a condition precedent for commencing an action, separate and apart from the statute of limitations. Some courts have determined that, while a Claimant's infancy tolled the statute of limitations, it did not toll this notice provision and, therefore, a late claim application was still necessary (see Harris v City of New York, supra). In the Court of Claims, however, a claim must be commenced within 90 days. The notice of intention to file a claim is not a condition precedent to filing a claim. Rather, it is an option available to a claimant that extends this 90 day statute of limitations, if properly utilized. Therefore, as a notice of intention is not a necessary prerequisite to filing a claim in the Court of Claims, and the statute of limitations is tolled during a Claimant's infancy, a motion for permission to file a late claim is not necessary during a Claimant's infancy.

With regard to Robert and Holly Murtiff's individual causes of action, 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 System Policemen's & Firemen's Retirement System, 55 NY2d 979).

This motion was filed approximately five months after the subject accident. Claimants do not offer any excuse for their delay and this factor therefore weighs in Defendant's favor. However, the absence of an excuse for the delay is only one of the factors considered by the Court in reviewing a § 10(6) application, and does not necessarily preclude the relief sought here (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, supra).

Claimants have not addressed whether an alternative remedy exists. Arguably, Claimants could commence an action in Supreme Court against the driver of the other vehicle involved in the accident. I note, however, that it appears from Claimants' submission that it was Holly Murtiff who lost control of her car and entered the driving lane occupied by the other car. It is unlikely that she would prevail in any such action. I find that this factor, therefore, weighs in Claimants' favor.

The next three factors covering notice, opportunity to investigate, and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). Defendant opposes the motion, asserting that it did not have notice of the incident. Claimants argue that the accident was extensively investigated by the Erie County Sheriff's Department (which investigation included the taking of many photographs of the accident scene, which have been submitted by Claimants with this motion) and that a Department of Transportation vehicle arrived at the scene shortly after the accident. The fact that an accident report was prepared by the Erie County Sheriff does not suffice to satisfy Claimants' burden of showing notice to Defendant (Bommarito v State of New York, 35 AD2d 458). However, I find that the approximately two month delay in filing has not significantly prejudiced Defendant's ability to investigate the accident or defend the claim. These factors, therefore, weigh in Claimants' favor.

With regard to merit, 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 Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). However, there is nothing in Claimants' motion papers of probative value indicating that Defendant's alleged negligence was a proximate cause of Claimants' accident (see Pagano v New York State Thruway Auth., 235 AD2d 409 [claimants did not submit evidence that roadway was not designed or maintained in accordance with the applicable construction standards and thus failed to establish appearance of merit]). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891).
It is well established that the State has a nondelegable duty to properly design, construct, and maintain its roadways in a condition which is reasonably safe for those who use them (see Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (see Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Generally, liability will not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (see Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892, supra; Rinaldi v State of New York, 49 AD2d 361, 363). Claimants make no allegation that Defendant had notice of a dangerous condition on Route 39 where the accident occurred.

Apart from this, the State enjoys a qualified immunity from liability arising out of a highway planning decision and can only be found liable for injuries "arising out of the operation of a duly executed highway safety plan . . . predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis" (Weiss v Fote, 7 NY2d at 589, supra; Friedman v State of New York, 67 NY2d 271, supra). Decisions regarding snow and ice control made by the Department of Transportation are covered by the Weiss immunities (Tuchrello v State of New York, 190 Misc 2d 664).

Claimants make the assumption that the State did not properly remove the snow, ice, and slush from the roadway, or apply salt or sand to the roadway. However, Claimants have failed to show any basis for this assumption. Some sort of expert proof is required to demonstrate that the State failed to comply with contemporary standards of highway maintenance or upkeep (Nyberg v State of New York, 154 Misc 2d 199, supra; Klinger v State of New York, 213 AD2d 378).

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), I find that they weigh in favor of Defendant. Based upon the foregoing it is hereby:

ORDERED, that Claimants' motion for permission to file a late claim on their own behalf is denied. Claimants' motion as it relates to their infant daughter, Rachel R. Murtiff, is denied as unnecessary.

August 20, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims