New York State Court of Claims

New York State Court of Claims

LEWIS v. STATE OF NEW YORK, #2004-015-424, Claim No. 109162, Motion No. M-68740


Court declined to exercise its discretion to allow stale claim for personal injuries arising out of vehicle/pedestrian accident in Village of Ellenville. Movant failed to proffer a reasonable excuse for delay and failed to show that the defendant received timely notice of the accident.

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:
O'Connor, McGuinness, Conte, Doyle & OlesonBy: Dennis T. Doyle, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 30, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. Movant was struck by a motor vehicle on May 10, 2003 while attempting to cross the intersection of Canal and Market Streets in the Village of Ellenville, Ulster County. A verified claim alleging the State was negligent in designing and maintaining the intersection was served upon the Westchester Regional Office of the Attorney General on March 19, 2004 and filed with the Clerk of the Court on April 8, 2004. The defendant served its verified answer to the claim on April 16, 2004 in which it raised , inter alia, the following defense:

TENTH: That this Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, The State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of accrual of the claim as required by Court of Claims Act Sections 10 (3) and 11.

Movant now moves for late claim relief. Defendant opposed the late claim motion but did not cross-move to dismiss the pending claim for lack of jurisdiction. The Court will therefore address the late claim application.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the application is timely. Since the proposed claim asserts a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies and the motion is properly before the Court.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuses advanced for the failure to timely serve and file a claim with respect to the May 10, 2003 personal injury accident are movant's ignorance of the applicable legal requirements and his incapacity arising from various hospitalizations following the accident. Ignorance of the law is not an acceptable excuse (Griffin v John Jay College, 266 AD2d 16). Moreover, movant offered no proof that his leg injury prevented him from timely serving and filing a claim or notice of intention to file a claim during the first 90 days of his convalescence (see Cabral v State of New York, 149 AD2d 453). This factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant's motion papers fail to allege that defendant received notice of the subject accident and was afforded a timely opportunity to investigate the underlying circumstances. It appears from Exhibit A attached to the motion papers that the accident was investigated by a patrolman (Michael Loucks) of the Ellenville Police Department. As a municipal employee Patrolman Loucks was not an employee of the State of New York and any investigation conducted by him cannot be imputed to the defendant. The lack of proof establishing either notice or an opportunity to investigate tends to support the defendant's claim of prejudice. As a result the issues of notice, opportunity to investigate and prejudice weigh against granting the motion.

As to the appearance of merit, the movant must only demonstrate that the proposed claim is not "patently groundless, frivolous or legally defective" and "there is a reasonable cause to believe a valid cause of action does exist" (Rosenhack v State of New York, 112 Misc 2d 967, 969, 970).

Movant did not attach a proposed claim to the motion but did include a copy of the previously filed claim as Exhibit E. The claim, which the Court will treat as the proposed claim for purposes of the motion, alleges that the State Department of Transportation owned, operated and maintained traffic signal control indicators and devices which were improperly installed and maintained. It is alleged that the failure of such devices to operate properly prevented the safe passage of pedestrians crossing the intersection where the movant was injured. The allegations are sufficient to meet the minimum threshold of merit required on a late claim application. This factor favors the granting of the motion.

As to the final factor, it appears that movant has other available remedies including an action in Supreme Court against the owner and operator of the vehicle which struck him (see Augat v State of New York, 244 AD2d 835; Gavigan v State of New York, 176 AD2d 1117).

Upon consideration of all the relevant factors, the Court declines to exercise its discretion in movant's favor and his motion seeking leave to file a late claim is denied.

August 30, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 28, 2004;
  2. Affirmation of Dennis T. Doyle dated June 28, 2004 with exhibits;
  3. Affidavit of Stephen J. Maher sworn to July 13, 2004 with exhibits;
  4. Affirmation of Dennis T. Doyle dated July 20, 2004 .