New York State Court of Claims

New York State Court of Claims

McLEOD v. THE STATE OF NEW YORK, #2004-013-009, Claim No. 105861, Motion Nos. M-67036, CM-67072


Synopsis


Case Information

UID:
2004-013-009
Claimant(s):
FRED McLEOD The Court has sua sponte corrected the caption to show the only properly named defendant.
Claimant short name:
McLEOD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte corrected the caption to show the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105861
Motion number(s):
M-67036
Cross-motion number(s):
CM-67072
Judge:
PHILIP J. PATTI
Claimant's attorney:
GIBSON, McASKILL & CROSBY, LLP
BY: CHARLES S. DESMOND, II, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 5, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On July 16, 2003, the following papers were read on motion by Claimant for an order striking the affirmative defense alleging an absence of a verification of the claim, or, in the alternative, for permission to file a late claim; and on cross-motion by Defendant for an order dismissing the claim:
Notice of Motion, Affidavit and Exhibits Annexed; Five Affidavits with Exhibits Annexed

Notice of Cross-Motion, Affirmation and Exhibits Annexed and Affidavit with Exhibits Annexed

Claimant's Affidavit in Opposition to the Cross-Motion


Defendant's Reply Affirmation


Filed Papers: Claim; Answer


Initially, Claimant moves to strike the third affirmative defense of the answer, or, in the alternative, permission to file a late claim. The third affirmative defense is based entirely upon the purported absence of a verification of the claim.

The Court of Appeals, in a recent opinion in Lepkowski v State of New York (1 NY3d 201) has held, inter alia, that Court of Claims Act Section 11(b) "therefore embraces CPLR 3022's remedy for lapses in verification." As the Court of Appeals observed, pursuant to CPLR 3022, "[a] defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification."

Here, inasmuch as the Defendant merely raised the issue as an affirmative defense, but did not follow the procedures specified in CPLR 3022, the defense or objection with respect to verification was waived. Accordingly, the motion is granted, and the third affirmative defense is stricken, with the alternative relief of permission to file a late claim being denied as moot.

In response to the motion, Defendant has made a cross-motion seeking to dismiss the claim on two grounds. The first ground relies upon the verification issue resolved above. The second ground is more problematical, relying upon the holding of the Court of Appeals in Riley v County of Broome (95 NY2d 455 [2000]). The Defendant supplies the affidavit of Michael F. Witkowski, Jr., the driver of the snowplow in question, who asserts that he was in the course of engaging in snow removal operations but had raised the plow and wings as he was preparing to enter into the intersection to make a left-hand turn. Claimant supplies some opposing affidavits making assertions about precisely what activities/work the snowplow was engaged in at the time of the accident.

Claimant characterizes the affidavit of Mr. Witkowski as being self-serving, and while I do think that Claimant has an uphill battle to overcome the holding of Riley, supra, I also agree that he should have the opportunity to depose Mr. Witkowski before I make any decision. Accordingly, the State's motion to dismiss is denied at this time, without prejudice to its renewal, or to a motion for summary judgment. It appears to me that the issue will be a determination of whether the snowplow was "actually engaged in work on a highway" under Vehicle and Traffic Law §1103(b), entitling it to be subject to the same recklessness standard applicable to emergency vehicles. I note in passing that the determination of whether a vehicle was actually engaging in work arose in an earlier claim before me (Quackenbush v State of New York, Ct Cl, #2000-013-022 [Claim No. 95363 - Motion No. M-61609], Sept. 5, 2000),[1] in a liability decision rendered just a few months prior to the Riley decision at the Court of Appeals. After entering a judgment in damages in Claimant's favor, long after the Riley decision, the matter was settled without any appeal having been taken by the Defendant, despite the potential contrariness of Riley.

All that having been said, the State's cross-motion to dismiss is denied in all respects. A conference to amend the current scheduling order will be calendared under separate cover.


February 5, 2004
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims





  1. [1]Decisions and selected orders of the Court of Claims are available via the Internet at www.nyscourtofclaims.state.ny.us/decisions.