New York State Court of Claims

New York State Court of Claims

LA PORTE v. THE STATE OF NEW YORK, #2004-033-072, Claim No. None, Motion No. M-68346


Synopsis



Case Information

UID:
2004-033-072
Claimant(s):
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY a/s/o ALIA J. LA PORTE
Claimant short name:
LA PORTE
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-68346
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Serpe, Andree & KaufmanBy: Cynthia G. Gamana, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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)[1], 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, New York.

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.[2] In 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 State.

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 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 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.


September 30, 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 April 14, 2004 and filed April 19, 2004; Affirmation of Cynthia G. Gamana, Esq. with annexed Exhibits A-K dated April 14, 2004 and filed April 19, 2004; Affirmation in Opposition of Todd A. Schall, Esq. with annexed Exhibit A dated May 19, 2004 and filed May 24, 2004.
[2]Movant has attached the notice of claim served on Suffolk County (Exhibit D). The location listed for the accident is the service road of Sunrise Highway.