This is a motion by State Farm Mutual Insurance Company a/s/o Alia J. La Porte
(hereinafter "movant") for permission to file a late claim pursuant to Court of
Claims Act §10(6)
, relating to alleged
property damage of the motorcycle of movant's subrogee.
The motorcycle was damaged as the result of an accident on September 3, 2002
on the eastbound service road of the Long Island Expressway ("LIE"), Medford,
According to movant's papers, the accident happened at approximately 7:00 p.m.
when Mr. La Porte "exited the Long Island Expressway at Exit 63/64 onto the
eastbound service road of Route 112/Medford, New York" (Movant Attorney
Affirmation par. 4). LaPorte lost control of his motorcycle when it hit a
depression/dip in the roadway. Movant alleges that there was construction in
the area with no warning signs or lights.
Movant filed a notice of claim against the County of Suffolk and proceeded to
try to recover against Suffolk County.
February 2004, the County of Suffolk moved for dismissal of the action. On
March 17, 2004, movant discontinued its action against the County of Suffolk
upon finding out the area in question was under the jurisdiction of New York
Defendant opposes the motion and asks that it be denied.
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
(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 admits that it does not have an excuse for the delay in filing the
claim. A modicum of effort would have lead counsel to the discovery that the
LIE was under the jurisdiction of New York State. Movant's failure to timely
file is attributable to law office error which is not excusable.
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 alleges that the accident happened in a construction area. By movant's
own admission, defendant does not have notice of the essential facts which
constitute the accident. Construction areas are transitory in nature. The
accident occurred approximately two years ago. Movant does not allege that the
condition is the same at this point, nor would the Court expect it to be. It is
clear that defendant had no opportunity to investigate the proposed claim. The
Court finds that the delay would substantially prejudice defendant.
Movant does appear to have an alternative remedy. It may proceed against the
contractor engaged in construction in the area of the accident.
While the presence or absence of any one of the six factors is 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 Court is not satisfied that the claim is meritorious. Movant's description
of the location is that LaPorte exited the LIE at Exit 63/64 onto the eastbound
service road. The area described by movant involves two separate exits and
miles of a multi - lane service road. The description is defective pursuant to
Court of Claims Act §11. In addition, the condition complained about is
described as a depression, a dip or a bump in various places in movant's papers.
In conclusion, none of the factors favor movant. Therefore, movant's
application to file a late claim is denied.