Affirmation in Opposition, Affidavit of Larry R. Sherman 4,5
Filed Papers: Claim No. 108961.
In her proposed claim (see Exhibit B to Items 1,2), claimant Linda Brown seeks
permission to serve and file a late claim for injuries and damages suffered by
her in a motor vehicle accident which occurred on April 27, 2003 at the
intersection of New York State Route 350 and Paddy Lane Road in Wayne County.
On that date, claimant was a passenger on a motorcycle operated by her husband,
Wayne Brown, heading north on State Route 350. As they proceeded through the
intersection with Paddy Lane Road, they were struck by an eastbound vehicle from
Paddy Lane Road. In this claim, claimant seeks to recover damages for her pain
and suffering, loss of past and future wages, and loss of consortium resulting
from this accident.
Claimant's husband, Wayne Brown, died as a result of injuries suffered by him
in this accident. The Court notes that claimant, as administratrix of her
husband's estate, has previously filed a claim seeking damages for his wrongful
death in Claim No. 108961.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
In her moving papers, claimant has not provided any explanation as to why her
claim was not timely served and filed. Without any attempt at such an
explanation, the Court finds that claimant has not provided an acceptable excuse
for her failure to timely serve and file her claim.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. As set forth in claimant's moving papers, shortly
after the accident involving claimant and her husband, an official from the Town
of Ontario requested that the New York State Department of Transportation
conduct a safety review of this intersection. Such a study apparently was
conducted, and a report was issued in October, 2003 (see Exhibit J to Items
1,2). The Court therefore concludes that the State did have timely notice of
the essential facts constituting this claim, and that not only did it have an
opportunity to investigate the circumstances underlying this claim, but in fact
it did conduct an investigation. Based on the foregoing, the Court concludes
that the State would suffer no undue prejudice should it have to defend the
proposed claim herein.
Additionally, since the State is obligated to defend the wrongful death claim
of claimant's husband, arising out of the same accident, the State will suffer
no prejudice whatsoever should it also be responsible for defending the
individual claim asserted herein by Linda Brown.
The next factor, often deemed the most critical, is whether the proposed claim
has the appearance of merit. If a claimant cannot establish a meritorious
claim, it would be an exercise in futility to grant a late claim application
(Savino v State of New York, 199 AD2d 254; Prusack v State of New
York, 117 AD2d 729). In order to establish a meritorious cause of action,
claimant must only show that the proposed claim is not patently groundless,
frivolous, or legally defective, and that there is reasonable cause to believe
that a valid claim exists (Matter of Santana v New York State Thruway
Authority, 92 Misc 2d 1).
In her proposed claim, claimant alleges that the State is responsible for the
maintenance and control of the intersection at State Route 350 and Paddy Lane
Road. Furthermore, claimant alleges negligent and improper design of this
intersection, an excessive speed limit for State Route 350 in this area, and
Defendant, in opposition to this motion, contends that claimant has failed to
demonstrate any merit to this claim, based upon her failure to submit any expert
testimony in support of the above allegations. Additionally, and as set forth
in the affidavit by Regional Traffic Engineer Sherman (see Item 5) defendant
argues that a detailed study of the intersection had been conducted by the
Department of Transportation, and that the actions taken by the State in
response to this study are clothed with qualified immunity (see Weiss v
Fote, 7 NY2d 579).
For purposes of a late claim application, however, and as set forth above,
claimant must only satisfy the low threshold of establishing that the proposed
claim is not patently without merit. In this particular matter, claimant has
set forth allegations of prior accidents at this intersection, and that the
State had been requested to investigate safety concerns of this intersection
prior to the accident herein. Such allegations are sufficient, for purposes of
this application only, to establish the appearance of merit. The State
certainly retains the right to present its qualified immunity defense, if
appropriate, in its defense of this claim.
While not addressed by either party, it would appear that claimant has the
opportunity to seek damages against the driver of the other vehicle involved in
this accident, thereby providing her with another available remedy.
Accordingly, after a review of the papers submitted herein, and after weighing
and considering all of the factors set forth under Court of Claims Act §
10(6), it is the opinion of this Court that claimant should be allowed to serve
and file her proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-68141 is hereby GRANTED; and claimant is directed to
file and serve her proposed claim, properly verified, within 45 days from the
date of filing of this decision and order in the Clerk's office, with such
service and filing to be in accordance with the Court of Claims Act, with
particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the
Court of Claims.