New York State Court of Claims

New York State Court of Claims

MARTIN v. THE STATE OF NEW YORK, #2004-016-048, Claim No. None, Motion No. M-68471


Late claim motion was denied.

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:
Jay H. Tanenbaum, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
August 11, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is Harry Martin's motion 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, Mr. Martin fell and was injured on February 4, 2004 when his mobile walker hit a pot hole at "West Tremont and Matthewson Road, at the entrance of Roberto Clemente State Park . . ." See the proposed claim annexed to Martin's motion papers as exhibit A. 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 factor controlling.[1]

As will become apparent, because of the nature of this case, the first factor that must be addressed is merit – defendant argues that the accident did not occur on State property. It is undisputed that the accident occurred outside the park entrance and claimant initially sued the City of New York in Supreme Court. However, claimant subsequently filed this motion because the "Mapquest" website "shows that the [accident] location is within the grounds of Roberto Clemente State Park." See ¶7 of the May 11, 2004 petition of Jay H. Tanenbaum and exhibit E thereto.

Defendant has submitted the affidavit of Osama Khalil, Civil Engineer and Claims Engineer for the New York State Department of Transportation, New York City Regional Office. Mr. Khalil states that the site of the accident was not owned or maintained by the State on the date of the accident. Khalil explains that:
[a]s per our bridge inventory records . . . Matthewson Road is a bridge structure/street which crosses over Metro North railroad tracks. Its identification number is 2269030
. . . West Tremont Avenue is [a] bridge structure/street which crosses over Mac Cracken Avenue. Its identification number is 2241460 . . . The subject bridges are owned and maintained by the City of New York. A copy of the bridge identification sheets is enclosed . . . There were no New York State Department of Transportation construction contracts in effect on the date and location of the alleged accident."

See ¶3 of the May 27, 2004 affidavit of Osama Khalil, annexed to defendant's opposition papers as exhibit A.

With regard to Mapquest, defendant argues that such "is hardly an accurate means of ascertaining ownership of a roadway. If one were to take literally what is shown on the Mapquest map annexed to movant's motion papers . . . then Conrail railroad trains are also running through the park. Counsel even describes the accident location as the "roadway in front of the park entrance."" See ¶8 of the June 7, 2004 affirmation of Grace A. Brannigan. In any event, claimant has submitted no reply papers in response to Khalil's affidavit.

I conclude that claimant fails to meet 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."

Three of the factors set forth in §10.6 – 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). Claimant argues that these factors have been met because police from Roberto Clemente State Park responded to the accident and because "it is believed that the roadway condition has not changed since the accident." See ¶16 of the Tanenbaum petition. However, as set forth above, it appears that the accident occurred outside Roberto Clemente State Park on a New York City roadway. Accordingly, as defendant points out, "[t]he response of [State] park police to a man falling down in the roadway outside of the park limits does not provide a basis for notice of liability to the State." See ¶9 of the Brannigan affirmation. I thus find that these three factors have not been met.

With regard to excuse, even were the State the property owner here, misapprehension as to which governmental entity is the proper defendant is not a recognized excuse 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, as claimant has properly sued the City of New York in Supreme Court, the alternate remedy factor is not implicated.

For the foregoing reasons, having reviewed the submissions,[2] IT IS ORDERED that motion no. M-68471 be denied.

August 11, 2004
New York, New York

Judge of the Court of Claims

  1. [1]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).
  2. [2]The following were reviewed: claimant's "Notice of Petition to File Late Notice of Claim" with annexed "Petition" and exhibits A through E; and defendant's affirmation in opposition with exhibit A.