New York State Court of Claims

New York State Court of Claims

HELWIG v. NEW YORK STATE THRUWAY AUTHORITY, #2004-009-70, Claim No. NONE, Motion No. M-68533


Synopsis


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

Case Information

UID:
2004-009-70
Claimant(s):
JAMES HELWIG & SON, INC.
Claimant short name:
HELWIG
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-68533
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
SEGEL, GOLDMAN, MAZZOTTA & SIEGEL, P.C.
BY: Lisa Ruoff Purdy, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 26, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has made application for permission to serve and file a late claim against the New York State Thruway Authority.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, Proposed Claim, with Exhibits 1,2,3

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 this claim.

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.


October 26, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims