Correspondence dated August 11, 2004 from Assistant Attorney General Edward F.
McArdle, Esq. 4
In the proposed claim, claimant, a provider of interstate refrigerated
transportation services, seeks to recover for property damage to one of its
tractor-trailers which occurred, when it was struck by a snowplow owned and
operated by the New York State Thruway Authority on January 7, 2004. At the
time of this incident, the tractor-trailer was parked in the Port Byron Service
Area on the eastbound side of the Thruway.
Defendant has not opposed the relief sought herein.
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).
With regard to excuse, claimant, an out-of-state trucking firm, maintains that
immediate communication was made with the Thruway Authority regarding this
incident, and that claimant remained in constant contact with the Authority
and/or its insurance carrier, with the expectation that this claim would be
resolved without the necessity of litigation.
The mere expectation of settlement, however, without some assurance from the
defendant that a settlement is forthcoming, is not a sufficient excuse to
justify the delay in pursuing a claim (Youngstown Pneumatic Concrete Co. v
State of New York, 55 AD2d 776; Society of N.Y. Hosp. v State of New
York, 21 AD2d 733). Additionally, the fact that claimant was a foreign
entity unrepresented by counsel at the time, and unfamiliar with the procedural
requirements of the Court of Claims Act, simply amounts to ignorance of the law,
which also is not a sufficient excuse for its failure to timely pursue a claim
(Modern Transfer Co. v State of New York, 37 AD2d 756; Society of N.Y.
Hosp. v State of New York, supra).
Nevertheless, in its attempts to settle this potential claim without
litigation, claimant has amply demonstrated that the Thruway Authority had
prompt and timely notice of the essential facts constituting this claim, and not
only did it have the opportunity to investigate the underlying circumstances, it
did in fact conduct such an investigation. Therefore, the Court finds that the
defendant would not suffer any substantial prejudice should it have to defend
The next factor, often deemed the most critical, is whether the proposed claim
has the appearance of merit. If 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 has
the burden to 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 this case, the allegations set forth in the proposed claim, to the effect
that its parked vehicle was struck by a snowplow owned and operated by the
Thruway Authority, is sufficient, for purposes of this application, to establish
the appearance of a meritorious claim.
Finally, it does not appear that claimant has any other available remedy.
Therefore, 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 its proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-68533 is hereby GRANTED; and claimant is directed to
file and serve its 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.