New York State Court of Claims

New York State Court of Claims

J.J.S. TRANSPORTATION v. NYS DEPARTMENT OF TRANSPORTATION, #2004-016-038, Claim No. 108604, Motion Nos. M-68227, CM-68730


Claim was dismissed as it was not served on defendant; late claim motion alleging that state vehicle struck claimant's parked car was granted.

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):
Alan C. Marin
Claimant's attorney:
Pocchia & WhitingBy: Anthony J. Pocchia, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
July 8, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Motion no. M-68227 is the Court's Order to Show Cause why claim no. 108604 should not be dismissed for lack of service on the State of New York. Cross-motion no. CM-68730 is claimant's application for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act").[1] In the underlying claim, it is alleged that on September 16, 2003, at the intersection of South Railroad Avenue and Fremont Avenue in Richmond County, a New York State Department of Transportation vehicle struck a parked car belonging to J.J.S. Transportation, Inc. Section 10.3 of the Act requires that a claim such as this be served on defendant within 90 days of accrual, i.e., in this case, by December 15, 2003. It is undisputed that to date, claim no. 108604 has not been served on defendant.

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). In short, this Court lacks jurisdiction over claim no. 108604 because of the lack of service on defendant.

As to claimant's late claim motion[2], six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[3]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Defendant had no notice of this claim until J.J.S. Transportation filed and served its motion papers on or about April 5, 2004, i.e., more than six months after the collision. However, documentation concerning the incident presumably exists (e.g., the police report annexed to the proposed claim) which will allow defendant to investigate. Moreover, no prejudice has been asserted by defendant. Overall, I find that these three factors have been met. As to an alternate remedy, it appears that claimant's sole remedy lies in this Court and thus this factor has been met. With regard to excuse, law office failure is not a valid explanation for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

Finally, it must be determined whether the proposed claim appears meritorious. It is undisputed that the driver of the State car collided with claimant's parked car. Claimant has thus made out a prima facie case of negligence and it will be defendant's burden at trial to "‘provide a nonnegligent explanation, in evidentiary form, for the collision.'" Stringari v Peerless Importers, Inc., 304 AD2d 413, 757 NYS2d 554, 555 (1st Dept 2003) (citation omitted).[4] I conclude that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

For the foregoing reasons, having reviewed the submissions,[5] IT IS ORDERED, with respect to motion no. M-68227, that claim no. 108604 be dismissed. IT IS FURTHER ORDERED that cross-motion no. CM-68730 be granted and that within forty-five (45) days of the filing of this Decision and Order, J.J.S. Transportation, Inc. shall serve and file its claim[6] and otherwise comply with §§11 and 11-a of the Court of Claims Act.

July 8, 2004
New York, New York

Judge of the Court of Claims

  1. [1]Claimant filed no notice of motion with regard to its late claim application, but as both parties treated the cross-motion as having been made, the Clerk's Office assigned a cross-motion number and the Court will rule upon such application.
  2. [2]Claimant does not make specific reference to a proposed claim in its moving papers, but it includes in exhibit 1 a copy of the claim which was filed as claim no. 108604. Such shall be considered the proposed claim for the purposes of this motion.
  3. [3]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  4. [4]In this case, defendant asserts that the driver of the State car lost control of the vehicle when "a spider fell on her face" and that such was unforeseeable and the collision thus not negligent. See ¶12 of the May 13, 2004 affirmation of Grace A. Brannigan.
  5. [5]The following were reviewed: claimant's "Response to Order to Cause Cross Motion to File Late Notice of Claim" with exhibits 1-3; and defendant's "Affirmation in Response to Order to Show Cause and in Opposition to Cross-Motion."
  6. [6]The Claim shall name the State of New York as defendant – not NYS Department of Transportation.