New York State Court of Claims

New York State Court of Claims

HENDERSON v. STATE OF NEW YORK, #2004-018-282, Claim No. NONE, Motion No. M-67436


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:
SHANLEY LAW OFFICESP. Michael Shanley, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Gordon J. Cuffy, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 16, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a timely motion for permission to file a late claim pursuant to Court of

Claims Act § 10(6) (CPLR 214[5]). Defendant opposes the motion.

The basis for the proposed claim arose on November 18, 2002, when movant alleges she was driving her vehicle on State Route 481, in the Town of Clay, in the passing lane, traveling at 55 miles per hour when she drove over a patch of black ice, lost control of her vehicle, and went off the west side of the road into a ditch. She claims that the State was negligent in failing to properly sand and salt the slippery roadway. Additionally, movant alleges that the State is liable for the negligent conduct of a State Trooper who responded to a prior accident at the same location and failed to take any action (using flares, etc.) to alert oncoming motorists of the icy spot on the roadway. Movant's vehicle went off the roadway at the same location as the earlier vehicle.

Court of Claims Act § 10(6) requires that the Court, in deciding an application for permission to file a late claim, give consideration to six factors: (1) whether there is a reasonable excuse for the delay in filing the claim; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorous; (5) whether the failure to file or serve a timely claim or serve a notice of intention resulted in substantial prejudice to the State; (6) whether there is any other available remedy, and any other relevant factors. There is no one factor that is determinative, rather it is a balancing of all of the factors that may warrant granting the application (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965).

The first factor is whether the delay in filing the claim is excusable. Movant asserts that the delay is excusable because movant did not know the severity of her injuries, which required surgery. This is not a sufficient excuse, and should not have prevented movant from serving a notice of intention (see DeGroff v State of New York, 43 AD2d 993 [seriousness of injuries was not known until later, although he consulted with a doctor right after the alleged incident, insufficient excuse]; Atterbury v State of New York, 26 Misc 2d 422 [wasn't aware of seriousness of injuries until hospital admission, not sufficient excuse]; Cabral v State of New York, 149 AD2d 453 [alleged hospitalization at some undisclosed time, with no substantiation not a sufficient excuse]; compare Callanan v State of New York, 42 Misc 2d 740 [a herniated disc caused by the trauma of the accident, causal connection was not clear until after 90 day period had expired, acceptable excuse]). Moreover, movant waited an additional seven months after retaining counsel before bringing this motion. This factor weighs against movant's application.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant asserts that the State had actual notice of the events because a State employee was present at the location at the time of the accident. Movant also argues that no prejudice will result and an investigation can still be done since there are documents describing the accident and conditions. Defendant argues that the State will be prejudiced since there were no pictures taken and the conditions no longer exist. Defendant also notes that the accident report reflects that movant skidded on slush; she now says it was black ice.

Although not identified, it appears that the State employee movant asserts was present at the time of the incident which gave the State actual notice was the State Trooper who prepared the accident report. The notice requirement is fulfilled when the facts giving rise to the claim have been timely provided to someone in authority in the department or agency responsible or to the legal department, such as the attorney general (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 7-8). Typically, a report made to a State Trooper is not considered notice to the State, since the report does not alert anyone in authority with the State department involved of a potential claim (Matter of Santana v New York State Thruway Authority, 92 Misc 2d at 7-8; United Services Automobile Assoc. v State of New York, Ct Cl, unpublished decision of J. Read, filed January 5, 1999, Claim No. None, Motion No. M-58225). Here, there was no notice to anyone in authority at the Department of Transportation (hereinafter DOT), or the State Police,[1] the departments accused of negligence. Under these circumstances, there has been no notice to the State. However, the Court disagrees with defendant that it has now been prejudiced by the delay. Whether the accident was caused by black ice or slush, these transient conditions would not have lasted for the 90 days movant legitimately had to file and serve a timely claim or serve a notice of intention pursuant to the statute. Therefore, the fact that these conditions no longer exist is not a convincing argument to establish prejudice and prevent the granting of a late claim application. There are reports for the two accidents at this location, clearly DOT has records regarding its efforts at snow and ice removal on that day, and witnesses are identified in the various reports and records, thus the Court does not find that the State will be prejudiced by the granting of this application.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. A proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). Reading the proposed claim and supporting documents, she has met her minimal burden. Although, as defendant points out, there are many issues which may impact whether movant is ultimately successful, her burden here is only to show meritoriousness. This factor weighs in favor of granting her application.

The final factor is whether the movant has any other available remedy. Movant's attorney asserts that she has no other remedy and it appears to this Court that she has none.

Accordingly, upon balancing all of the factors in Court of Claims Act § 10(6), this Court GRANTS the movant's motion to permit the late filing and serving of the proposed claim. Movant should file and properly serve the proposed claim, properly verified, in accordance with Court of Claims Act §§ 10, 11 and 11-a and all other applicable statutes and court rules within 45 days of the date this Decision and Order is filed with the Clerk of the Court.

March 16, 2004
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion....................................................................................................1

Affidavit of Margaret Henderson, in support.........................................................2

Affirmation of P. Michael Shanley, Esquire, in support........................................3

Affirmation of Gordon J. Cuffy, Esquire, Assistant Attorney General,

in opposition, with exhibits attached thereto..............................................4

[1]The mere presence of the State Trooper at the scene of the accident would not provide notice of the facts giving rise to the claim against the trooper; and notice to the alleged tortfeasor, who is not in a supervisory position, is not sufficient notice (Wilko v State of New York, 212 AD2d 889).