New York State Court of Claims

New York State Court of Claims

UTICA v. THE STATE OF NEW YORK, #2004-028-568, Claim No. NONE, Motion No. M-68126


Motion Granted.

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:
Defendant's attorney:
BY: Joel L. MarmelsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant's application pursuant to Court of Claims Act §10(6) for permission to late file a Claim:

  1. Notice of Motion and Supporting Affidavits of Charles N. Brown, Esq, (Brown Affidavit); and Deborah Day (Day Affidavit), filed February 25, 2004 with annexed Exhibit A;
  1. Affirmation in Opposition of Assistant Attorney General Joel L. Marmelstein filed June 9, 2004 (Marmelstein Affirmation);
  1. Affidavit in Opposition of Paul D. Mancuso, DOT Professional Engineer
(Mancuso Affidavit).

Movant, City of Utica, seeks the Court's permission to late file a claim against the Defendant alleging that actions of Defendant's Department of Transportation (DOT) caused damage to a City owned sewer trunk line necessitating repairs in excess of $90,000.00. Defendant opposes the application.

Movant alleges that late in July 2003 DOT contacted Movant's Engineering Department regarding a 20-foot diameter "hole" along the shoulder of east bound State Route 5S west of the Culver Road exit. Movant alleges the "hole" was in a 30-inch trunk sewer owned by Movant that ran parallel to State Route 5S. In the course of repairs, Movant asserts it "was learned that NYS DOT maintenance crews had on prior occasions found a failure at this site and filled it with pavement millings" (Claim ¶ 2). It is alleged these pavement millings entered and completely blocked the sewer trunk.

As a threshold issue, the Court must determine whether Movant's application for permission to late file its claim was timely filed within the relevant statute of limitations provided by Article 2 of the CPLR. The failure to file such application within the prescribed time period "creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief" (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). The cause of action presented herein is governed by the three year statute of limitations and as such, the instant application is timely made.

It is well settled that the factors a Court must consider in determining a properly framed CCA § 10 (6) motion are whether 1) the delay in filing the claim was excusable, 2) the State had notice of the essential facts constituting the claim, 3) the State had an opportunity to investigate the circumstances underlying the claim, 4) the claim appears to be meritorious, 5) the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State, and 6) there is any other available remedy (see Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981).

Movant asserts as its reasonable excuse for the delay in filing its Claim, its reliance upon certain alleged representations by DOT that Defendant would in essence pay the bill (Brown Affidavit ¶ 3). It is settled that a Movant's anticipation that a negotiated settlement would be achieved is not a reasonable excuse for untimely filing (see Dobbert v State of New York, Ct Cl, Collins, J., Claim No. None, Motion No. M-66046, UID#2003-015-318, March 6, 2003). This factor weighs against the application.

The factors of notice, opportunity to investigate and prejudice can be viewed together. Defendant acknowledges that it was not without notice of the underlying events - as it first notified Movant and then monitored the repairs - but asks the Court to draw a distinction between notice of the facts of the proposed claim and notice of the possibility for litigation (Marmelstein Affirmation ¶ 2). While Defendant argues the Day affidavit is unsupported as to conversations between Day and DOT employee Harry Lenz (id. ¶ 3[1]) regarding resolution of the Movant's claim, the Court notes that to refute these assertions Defendant has provided an affidavit of an employee who was not a party to the conversation. On this record, the Court declines to draw the distinction sought by Defendant as the record before the Court indicates Movant intended to hold the Defendant responsible for the blocked sewer line. As a result, it does not appear that the State has been prejudiced by the Movant's delay in filing and serving the Claim and the factors of notice, opportunity to investigate and lack of prejudice favor granting the motion (Lockwood v State of New York, 267 AD2d 832, 833).

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Movant need not establish a prima facie case at this point, but rather the appearance of merit (see e.g. Jackson v State of New York, Ct Cl, Midey, J., Claim No. NONE, Motion No. M-64481, UID#2002-009-007, February 19, 2002). While there is certainly a serious question as to the amount of Movant's damages, resolution of that issue is not made on this application but rather must await a trial of the Claim. In that regard, the Court rejects Defendant's position that an expert affidavit is necessary on the instant application (Marmelstein Affirmation ¶ 5) albeit such proof may be necessary to establish the extent of Movant's damages. While this Court embraces the necessity of an expert affidavit in certain situations (see Aronson v State of New York, Ct Cl, Sise, J.,Claim No. NONE, Motion No. M-65339, UID#2002-028-075, December 27, 2002, [highway design]) the facts of this proposed Claim do not require an expert affidavit to establish merit (see McCann v State of New York, Ct Cl, Sise, J.,Claim No. None, Motion No. M-65810, UID#2002-028-069, December 20, 2002). If, as alleged, Defendant filled Movant's sewer line with pavement millings, it does not require an expert to conclude a blockage would follow[2]. Similarly, Defendant's observation that upon the collapse of a buried sewer line earth and other fill materials will enter the damaged line is not lost on the Court. Given these conflicting allegations the Court can not conclude the proposed Claim lacks merit. Accordingly, the Court finds this factor favors the application.

Defendant offers that Movant has an alternative remedy in the DOT's small claims procedure which can resolve claims up to $5,000.00 (Mancuso Affidavit ¶ 7). Given that Movant seeks damages well above the small claims procedure maximum, the Court finds Movant does not have an alternative remedy. As such, this factor also favors the application.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting Movant's motion for permission to file a late claim.

Accordingly, Movant's application for permission to late file a claim is GRANTED and Movant is directed to file and serve a claim identical to the proposed claim, annexed to the moving papers, and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed.

November 1, 2004
Albany, New York

Judge of the Court of Claims

[1] The reference is to the first paragraph denominated as "3" in the opposition papers.
[2] The Court notes that the Defendant has not denied that pavement millings were discharged at the failure site.