New York State Court of Claims

New York State Court of Claims

VERIZON NEW YORK, INC. v. THE STATE OF NEW YORK, #2004-033-065, Claim No. None, Motion No. M-68187


Synopsis



Case Information

UID:
2004-033-065
Claimant(s):
VERIZON NEW YORK, INC.
Claimant short name:
VERIZON NEW YORK, INC.
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-68187
Cross-motion number(s):

Judge:
James J. Lack
Claimant's attorney:
Edward C. Cosgrove, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 25, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion by Verizon New York, Inc. (hereinafter "movant") for permission to file a late claim pursuant to Court of Claims Act §10(6)[1], relating to alleged property damage to movant's property by employees of the defendant.

The alleged acts of negligence occurred on April 25, 2002. According to movant, employees of the defendant were installing a road sign on Route 109 "at or near the intersection with Staples Street in the Town of Farmingdale, New York" (movant's counsel Affidavit ¶4).

In order to determine whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act §10(6):

(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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State;

(5) whether movant has another available remedy; and

(6) whether the claim appears to be meritorious.


The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

Movant does not address the individual elements of Court of Claims Act §10(6). The Court will attempt to address the elements based upon the minimal support movant has provided. Movant offers no excuse as to why there was a delay in filing. The Court will attribute the delay to law office ignorance. The ignorance of the law of movant's attorney is not a reasonable excuse (see, Sevillia v State of New York, 91 AD2d 792).

The second, third and fourth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

Movant argues that defendant had knowledge of the damage to the property because it sent a letter to defendant on July 2, 2002, by certified mail, return receipt requested (movant's Exhibit A). Movant further states that this letter was served upon defendant within 90 days of the date of the occurrence, and "timely provided Defendant with the knowledge of the date, location and type of damages to Verizon facilities (movant's counsel Affidavit ¶8). Further, movant states that no prejudice will inure to defendant as a result of the delay in filing.

In examining movant's Exhibit A, the Court is unable to find the detail to which movant refers. The body of the letter is a form letter which states that movant intends to bill for damages which occurred to its property. There is no detail in the body of the letter as to what property was damaged, to what extent it was damaged or the manner in which it was damaged. The in "Re" portion of the letter is the only place where any type of details are given. It states that the letter is about damage to Verizon facilities. It gives a claim number (which is unspecified as to whose claim number it is). There is a date of loss. The last item is the location which reads:
2100 PIC, CONDUIT, ROUTE 109 -: TAP

ES, FARMINGDALE,

NY

While the Court is certain that movant knows exactly what this means, the Court has no idea. Movant's use of its own jargon can not be considered sufficient notice to the defendant. The Court presumes that there are four corners at the intersection of Route 109 and Staples Street. There is no indication in movant's motion, proposed claim, or Exhibit A as to the exact location of this occurrence. In addition, there is no evidence that the defendant's employees knew that any damage occurred at the time of the incident. The proposed claim attached to the motion as Exhibit B is equally inadequate. The proposed claim fails to provide details sufficient to satisfy Court of Claims Act §11.

While the presence or absence of any one of the six factors in not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most critical factor always is the apparent merit of the proposed claim. The movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and 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). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant's request.

The only affidavit in support of movant's application is counsel's affidavit. There is no evidence presented by someone with actual knowledge of the events to show merit or to meet the pleading requirements imposed by Court of Claims Act §11.

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff'd 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. There must be sufficient detail to enable the State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, aff'd 98 AD2d 902). Pursuant to the Court of Claims Act, a claim must include the time when and place where the claim arose, the nature of the claim, items of damage or injuries sustained as well as the total sum claimed. If the original document does not include all that is essential to constitute a claim, the document is jurisdictionally defective (Grande v State of New York, 160 Misc 2d 383). The claim is subject to dismissal and "a lack of prejudice to the State is an immaterial factor" (Byrne v State of New York, 104 AD2d 782, 785, lv den 64 NY2d 607).

The only factor that appears to be in movant's favor is that it does not appear that there is an alternate remedy available.

In conclusion, the majority of factors do not favor movant. Therefore, movant's application to file a late claim is denied.


June 25, 2004
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on movant's motion to file a late claim pursuant to Court of Claims Act §10(6): Notice of Motion dated March 10, 2004 and filed March 12, 2004; Affidavit of Edward C. Cosgrove, Esq. with annexed Exhibits A-B sworn to March 10, 2004 and filed March 12, 2004; Affirmation in Opposition of Todd A. Schall, Esq. dated April 5, 2004 and filed April 8, 2004.