This is the motion of One Beacon Insurance Company for permission to file a
late claim pursuant to §10.6 of the Court of Claims Act. In the proposed
claim, it is alleged that because of defendant's negligence, a November 27, 2002
fire erupted in a Staten Island building rented by the New York State Division
of Parole from claimant's subrogor. In order to decide this motion, 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
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).
In this case, within two weeks of the fire, an independent adjuster hired by
claimant met with the Division of Parole's Bureau Chief regarding the fire, and
informed him that a subrogation claim would be filed against the State. In
addition, on December 10, 2002, the adjuster sent the Bureau Chief a certified
letter to such effect. See exhibits C and D to claimant's moving papers.
Defendant makes no argument as to these three factors and I find that they have
As to an alternate remedy, it is undisputed that claimant's sole remedy lies in
this Court and thus this factor has been met. With regard to excuse, the
proffered explanation is an "inadvertent mistake by the assigned adjuster." See
¶13 of the April 2, 2004 affidavit of Alan Wenig. Such is not a valid
explanation for the purposes of the Act. See, e.g., Matter of E.K. 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 a fire occurred and that property damage (alleged to be in
the amount of $45,567.09) was sustained by claimant; claimant has annexed
reports, photographs and appraisals of the damage as exhibit E to its moving
papers. According to a New York City Fire Department Incident Report (exhibit A
to claimant's papers), the cause of ignition was "Accidental - Human Factor."
Specifically, the report states that "[f]ire found to be caused by sternos that
were being used to heat a buffet for a party. Fire from sternos had caused
[combustibles] nearby to go on fire." Defendant argues that the mere happening
of an accident carries no presumption of negligence, however, as set forth
above, the Fire Department's report specifically found that the sternos were
placed next to combustibles. Defendant also argues that even if there was
negligence, the sternos "may have" been set up by a caterer. See ¶8 of the
May 7, 2004 affirmation of Grace Brannigan (the "Brannigan Aff."). No evidence
as to a caterer's involvement has been submitted, but even if it had, such would
not effect the appearance of merit.
Finally, defendant argues that claimant "may have waived [its] rights of
subrogation" because of a clause in the lease which required claimant's subrogor
to obtain an insurance policy with a waiver of the insurer's rights of
subrogation. Claimant argues that the lease has no such mutual requirement for
the State, and that "[i]t is extremely well settled that a wavier of subrogation
will not be enforced unless it is mutual and requires both parties to purchase
insurance." See ¶6 of the June 11, 2004 affidavit of Alan Wenig, citing
Radius Ltd. v Newhouse, 213 AD2d 614, 624 NYS2d 227 (2d Dept 1995);
Metropolitan Art Assoc. v Wexler, 118 AD2d 548, 499 NYS2d 164 (2d Dept
1986); and Graphic Arts Supply, Inc. v Raynor, 91 AD2d 827, 458 NYS2d 115
(4th Dept 1982).
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
IT IS ORDERED that motion no.
M-68291 be granted and that within forty-five (45) days of the filing of this
Decision and Order, One Beacon Insurance Company shall serve and file its claim
and otherwise comply with §§11 and 11-a of the Court of Claims