New York State Court of Claims

New York State Court of Claims

EVTUSHEK v. STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2004-018-283, Claim No. NONE, Motion No. M-67409


Synopsis


Case Information

UID:
2004-018-283
Claimant(s):
MARJORIE EVTUSHEK
Claimant short name:
EVTUSHEK
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-67409
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
MORRIS and MORRISBy: Bernadette Weaver-Catalana, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Roger B. Williams, Esquire
Assistant Attorney General

SMITH, SOVIK, KENDRICK & SUGNET, P.C.
By: Kristin L. Norfleet, Esquire(Attorneys for the New York State Thruway Authority)
Third-party defendant's attorney:

Signature date:
February 4, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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

of Claims Act § 10(6) (CPLR 214[5]). Defendants oppose the motion.

The proposed claim[1] asserts that while movant was a patron at a gas station located at the New York State Thruway Authority rest area, 6031 Tarbell Road, Syracuse, New York, at approximately 10:00 a.m. on October 29, 2002, her left foot became caught in a gap between the pump area and the pavement. As she was trying to remove her left foot from the gap, her right foot stepped into a hole. She has suffered injuries as a result. She asserts that the New York State Thruway Authority was responsible for the maintenance of this area, and that it failed to warn patrons of the dangerous condition or repair it.

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 meritorious; (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 the State and the Thruway Authority were given prompt notice of movant's injuries and the condition causing her injury. Movant's response does not address what prevented her from timely filing and serving a claim or serving a notice of intention. Nor does movant's response address why it then took her 11 months to bring this application. This factor weighs against granting movant permission to file a late claim.

The factors of whether the State and the Thruway Authority had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State and the Thruway Authority 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 and the Thruway Authority had actual notice of the events because both were immediately made aware of the alleged injury producing condition and movant's injuries when she reported the incident to a New York State Trooper and a New York State Thruway Authority Officer that day. Additionally, the insurance representative for Sunoco, Inc., separately contacted the New York State Thruway Authority, in writing, less than two months after the incident, advising that based upon Sunoco, Inc.'s agreement with the Thruway Authority, the Thruway Authority was responsible for the area where movant's injury occurred. The Court finds that this was sufficient and prompt notice to the New York State Thruway Authority, which provided an opportunity for an investigation and the absence of prejudice, if this late claim is permitted to be filed and served. Although the presence of the State Trooper at the scene to take an accident report is not normally notice to the State, here notice is not disputed. These factors, therefore, weigh in favor of granting movant's 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 movant's affidavit and supporting documents, she has met her minimal burden to establish the potential meritoriousness of her proposed claim. Counsel for defendant, State of New York, asserts that "the area at which the alleged fall occurred is believed to be under the exclusive maintenance control of the New York State Thruway Authority" (Assistant Attorney General Williams ¶4). There is no affidavit from anyone with actual knowledge at the State providing that the State has no obligations at the location of movant's fall. As a result, at this juncture, movant has met her burden to establish potential meritoriousness.

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 against the State of New York and the New York State Thruway Authority. Movant should file and properly serve the proposed claim in accordance with Court of Claims Act §§ 10 and 11 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.


February 4, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims



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


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


Affirmation of Bernadette Catalana, Esquire, in support with exhibits

attached thereto..........................................................................................2


Affirmation of Roger B. Williams, Esquire, Assistant Attorney General,

in opposition..............................................................................................3


Affidavit of Kristin L. Norfleet, Esquire, in opposition........................................4


[1]An identical claim #108289 was filed on September 17, 2003.