New York State Court of Claims

New York State Court of Claims

ONAYIGA v. THE STATE OF NEW YORK, #2004-010-030, Claim No. NONE, Motion No. M-69221


Synopsis


Claimant's motion to serve and file a late claim is denied.

Case Information

UID:
2004-010-030
Claimant(s):
RICHARD ONAYIGA
Claimant short name:
ONAYIGA
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-69221
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
GERARD M. MARRONE, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 8, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's motion to serve and file a late claim:
Notice of Motion, Supporting Affirmation, Affidavit of Merit, Exhibits................1

Affirmation in Opposition.........................................................................................2

The proposed claim alleges that at approximately 1:45 p.m. on February 7, 2003, claimant was driving eastbound on the Cross County Parkway near Murray Avenue in Yonkers, when claimant's vehicle was struck in the rear by another vehicle "due in part to the excessive accumulation of ice and snow on the parkway" (Proposed Claim, ¶ 2, Affidavit of Merit, ¶ 3). Claimant allegedly sustained injury from the impact and waited "on the roadside" for police to arrive, when he was struck by a second motor vehicle that veered off the parkway "due in part to the excessive accumulation of ice and snow on the parkway" (id.). The proposed claim alleges that defendant was negligent in its failure to either clear the area of ice and snow or to otherwise make the area safe.

In May 2003, claimant's attorney sent a claim by Federal Express to the New York State Department of Transportation; he acknowledges that this was not proper service upon the State and offers as an excuse "inadvertence and clerical error" (Affirmation in Support, ¶ 6). Accordingly, claimant seeks leave to serve and file a late claim upon the State.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the above six factors. Claimant's purported excuse for his failure to timely commence an action is not acceptable (see Powell v State of New York, 187 AD2d 848; Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854). Additionally, given the transitory nature of the alleged condition, claimant's delay substantially prejudiced defendant because the State was not afforded the opportunity to timely investigate the circumstances underlying the claim (see Nicometti v State of New York, 144 AD2d 1036 [delay was inexcusable and prejudiced the State because it had not investigated the accident]). It is also noted that claimant may have another available remedy via suit against the operators of the other vehicles alleged to have caused him injury.

Most significant is the appearance of merit of the proposed claim. 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). "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). To show the appearance of merit of this negligence claim, claimant must allege and have a basis for the claim that there was a foreseeably dangerous condition that defendant either created or had notice of and failed to remedy within a reasonable time and that such failure was a proximate cause of claimant's injuries (see Gordon v American Museum of Natural History, 67 NY2d 836). While the State must maintain its highways and adjacent areas in a reasonably safe condition, "[t]hat ice, snow, or water is present on a roadway at the time of an automobile accident does not, by itself, establish negligence on the part of the State" (see Timcoe v State of New York, 267 AD2d 375). Claimant's unsupported self-serving allegations are insufficient to establish the appearance of merit (see Klingler v State of New York, 213 AD2d 378 [claimant's unsupported opinion does not suffice to establish merit of their claim]). Notably, claimant failed to submit an accident report, a witness statement, or a medical record establishing that defendant's alleged negligence was a proximate cause of the alleged accident (see Matter of Gallagher v State of New York, 236 AD2d 400 [nine month delay caused State substantial prejudice and claimant did not establish appearance of merit merely by submitting a photograph of the accident site]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness' statement]). Notably, claimant does not even allege any specifics as to the particulars of the alleged condition such as the amount or the breadth of snow and ice or how long it was present.

Accordingly, upon weighing all the factors, claimant's motion for leave to file and serve a late claim is DENIED (see Qing Liu v City Univ. of N.Y., 262 AD2d 473).


February 8, 2005
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims