New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2004-009-51, Claim No. NONE, Motion No. M-68141


Claimant's application for permission to serve and file a late claim was granted.

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:
BY: Anthony J. LaDuca, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 13, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2

Affidavit of Linda Brown, with Exhibits 3

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 inadequate signage.

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.

September 13, 2004
Syracuse, New York

Judge of the Court of Claims