New York State Court of Claims

New York State Court of Claims

MARTINELLI v. THE STATE OF NEW YORK, #2004-032-088, Claim No. 109227, Motion Nos. M-68586, 68800


Synopsis


Motion for permission to file an untimely claim is granted, where the movant was wrongfully detained because of mistaken records maintained by DMV.


Case Information

UID:
2004-032-088
Claimant(s):
ANTHONY MARTINELLI and KRISTEN MARTINELLI The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Claimant short name:
MARTINELLI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109227
Motion number(s):
M-68586, 68800
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Bournazos & Matarangas, P.C.By: Steven Bournazos, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
October 20, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movants' proposed claim (Bournazos affirmation, Exhibit F) alleges that on January 24, 2004, as the vehicle in which the couple was riding approached the Lincoln Tunnel, movant Anthony Martinelli, who was driving, was unlawfully seized and arrested as a result of the negligence of the New York State Department of Motor Vehicles (DMV). DMV, it is alleged, had imputed 14 different traffic violations to him that were, in fact, issued to another individual, one Antonio Martinez. Movant is a resident of New Jersey and has never possessed a New York State driver's license. Antonio Martinez, to whom the tickets were issued, is a resident of Freeport, New York.
This motion was brought approximately six months after the proposed claim arose, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214).
In determining a motion for permission to file a late claim, the Court must consider, among
other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 1) whether the delay in filing the claim was excusable; 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 timely notice of intention resulted in substantial prejudice to the State; and 6) whether the movant has another available remedy. The Court in the exercise of its discretion balances these factors. The presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]).

Movants failed to timely initiate an action in this court because of law office failure. On April 22, 2004, within the ninety-day time period for commencing an action, a claim was served on DMV and filed with the Clerk of the Court.[1] No copy of this claim was served on the Attorney General. Movants' counsel asserts that the delay in properly commencing the claim is excusable "in that it was inadvertent" (Bournazos affirmation, ¶15). Neither ignorance of the law (Matter of Galvin v State of New York, 176 AD2d 1185 [3d Dept 1991], appeal denied 79 NY2d 753; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd on opn below 42 NY2d 854) nor law office failure (Erca v State of New York, supra; Sevillia v State of New York, 91 AD2d 792; Block v New York State Thruway Authority, 69 AD2d 930 [3rd Dept 1979]) provides an acceptable excuse for failing to comply with the requirements of the Court of Claims Act. Only gross negligence, malfeasance or inaction by an attorney could potentially provide a litigant with an acceptable excuse for the delay (see, discussion in Sessa v State of New York, 88 Misc 2d 454, 459-460, affd 63 AD2d 334, affd 47 NY2d 976).
Movants assert that the State had notice of the essential facts constituting the claim because a timely claim was served on the DMV. In the particular circumstances of this case, where the client agency was undoubtedly aware that a serious mistake had occurred and where it received timely notice that movants intended to commence a lawsuit based on that mistake, the timely service of the claim on the wrong office can serve to satisfy the statutory requirement of notice. In addition, the cause of action is one that can be proven, or disproven, by documents in existence and in the hands of defendant, so the passage of time has not seriously impeded the ability of defendant to defend against the action. Counsel for defendant does not contend that the State would suffer prejudice if the requested relief is granted. Consequently, defendant's opportunity to investigate the circumstances underlying the claim was not impeded, and permitting the filing of an untimely claim would not result in substantial prejudice to the State.
It appears that movant does not have an available remedy against any party other than the State.
Movant has succeeded in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and 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 [Ct Cl 1997]).
With respect to the contention of defense counsel that any such action is barred by the Third Department's decisions in Williams v State of New York (90 AD2d 861 [1982]), as further refined by Ford Motor Credit Co. v State of New York (133 AD2d 980 [1987]) and Collins v Brown (129 AD2d 902 [1987]), that issue is best resolved after the underlying facts have been fully developed. Even if an action may ultimately be found to be without merit, once the facts are fully developed, the movant should not be precluded from going forward at this early stage (Marcus v State of New York, 172 AD2d 724 [2d Dept 1991]).
Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting movants' motion for permission to file a late claim. Movants are therefore directed to file and serve a claim identical to the proposed claim submitted in support of this motion; and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within sixty (60) days after this decision and order is filed.



October 20, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on the Court's motion for information clarifying the question of service (Motion No. M-68800) and movants' motion for permission to file an untimely claim

1. Order to Show Cause;
2. Notice of Motion and Supporting Affirmation of Steven Bournazos, Esq. with annexed Exhibits, including a Proposed Claim; (Motion No. M-68586)

3. Affidavit in Opposition of Michael C. Rizzo, Esq, AAG.

4. Reply Affirmation.

Filed papers: Claim No. 109227




[1] The Clerk of the Court assigned Claim No. 109227 to this claim. As a result of the concession by movants' counsel that a copy of that claim was not served on the Attorney General, Claim No. 109227 is hereby dismissed on the ground of improper service. This action has the effect of resolving Motion No. M-68800, initiated by an Order to Show Cause and requiring the parties to submit evidence relating to service.