Movant brings a timely motion for permission to file a late claim pursuant to
Claims Act § 10(6) (CPLR 214). 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
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
, 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
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 has considered the following documents in deciding this motion:
Affidavit of Margaret Henderson, in
Affirmation of P. Michael Shanley, Esquire, in
Affirmation of Gordon J. Cuffy, Esquire, Assistant Attorney General,
in opposition, with exhibits attached