New York State Court of Claims

New York State Court of Claims

JOMARRON v. THE STATE OF NEW YORK, #2004-033-078, Claim No. 107041, Motion Nos. M-68468, CM-68583


Synopsis



Case Information

UID:
2004-033-078
Claimant(s):
JOVANY JOMARRON
Claimant short name:
JOMARRON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK The Court previously amended the caption pursuant to Daily Report dated November 26, 2003 to name The State of New York as the only defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107041
Motion number(s):
M-68468
Cross-motion number(s):
CM-68583
Judge:
JAMES J. LACK
Claimant's attorney:
Mallilo & Grossman, Esqs.By: Francesco Pomara, Jr., Esq.
Defendant's attorney:
White, Fleischner & Fino, LLPBy: Wendy K. Carrano, Esq.
Third-party defendant's attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim is brought by Jovany Jomarron (hereinafter "claimant") due to the alleged negligence of the defendant, the State of New York (hereinafter "State"). The alleged negligence occurred on July 29, 2001, at Jones Beach State Park, Wantagh, New York.
Claimant was scheduled to play a softball game on the softball field at Jones Beach State Park at 9:00 a.m. on July 29, 2001. Prior to the start of the game, claimant was on the field with some teammates trying to practice. A fly ball was hit in claimant's direction while he was in right field. The ball drifted toward the right field foul line. Claimant kept his eye on the ball and began to run to his left to catch the ball. Before getting into foul territory, claimant ran into a tractor belonging to defendant. The tractor was at the field because defendant's employee was at the field preparing it for play.

Claimant mailed a notice of intention in this matter by depositing it in the mail[1] on October 29, 2001. The defendant received the notice of intention some time after that date. The notice of intention, served on defendant, was entitled "Notice of Claim". The State answered the "Notice of Claim" on November 29, 2001. In December 2002, claimant filed the claim in the Clerk's office. This claim was answered by the State in November 2002.

Interposed in both of the State's answers was a jurisdictional affirmative defense that neither the claim nor the notice of intention was served within 90 days of the date the claim accrued.

Realizing the problem with timeliness, claimant has filed a motion[2] requesting permission to file a late claim pursuant to Court of Claims Act §10(6). Defendant opposes claimant's motion and has cross-moved to dismiss the currently active claim.

Court of Claims Act §10(3) states:A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.


There is no question in this matter that the notice of intention, first served on the Attorney General's Office in November 2001, was not timely served. Depositing the notice of intention on the 90th day is insufficient to satisfy the statute. Court of Claims Act §11 states that a claim or notice of intention must be served on the Attorney General's Office by either personal service on an Assistant Attorney General or by certified mail, return receipt requested. Service by mail is not complete until it is received by the Attorney General's Office. Claimant concedes that the original notice of intention was not timely.

Based upon the foregoing, the Court must grant defendant's cross-motion and dismiss the claim.

The Court turns its attention to claimant's request to file a late claim pursuant to Court of Claims Act §10(6).
In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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).

Claimant attributes the delay to not obtaining the police accident report until after the 90 days had expired. Claimant includes an affidavit from an employee of counsel who had the job of obtaining the police report in this matter. The affiant states that she was given the file, that she tried to obtain the report and was only able to get a fax copy on October 29, 2001. The Court notes that there is no indication in the affidavit as to when the file was given to the affiant or what attempts she made in trying to obtain the report.

A delay in obtaining the report is not a valid excuse for failing to timely serve a notice of intention. As defendant argues, claimant knew he was hurt on defendant's property. A notice of intention could have been served which indicated where, when and the manner in which claimant was injured.

Claimant's delay in timely filing a claim or timely serving a notice of intention is attributable to ignorance. The ignorance of the law is not a reasonable excuse (see, Sevillia v State of New York, 91 AD2d 792).

It appears that movant has an alternate remedy. Claimant was playing in a league which had an agreement with the defendant to use the ball fields.[3] It appears, the first and fifth factors disfavor the application.

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.

At the time of the accident, a police officer employed by the defendant responded to the scene and conducted an investigation as to the accident. Since a claim has been filed, the State has been actively engaged in discovery and has apparently obtained all of the information concerning the incident. The Court finds no substantial prejudice to the State. Accordingly, these three factors favor the application.

While the presence or absence of any one factor 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 is the apparent merit of the proposed claim. A 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 (see 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 claimant's request.

Claimant states that he was on the field prior to the start of the game. He also states that he knew that the league rules stated that the players could not be on the field prior to the start of a game because defendant's employees conduct maintenance at that time. The State's witness testified in his deposition that he was actively engaged in preparing the field for the game claimant was about to play. The employee spoke to some players and told them they were not supposed to be on the field. These players chose to stay on the field while maintenance was going on. Whether claimant was among the players told by the employee is irrelevant, he clearly stated that he was aware of this rule. Claimant's accident was clearly caused by his own neglect. The tractor that he ran into was in a stopped position on the field.[4] The claimant did not belong on the field at the time. The Court finds there is no appearance of merit.

Based on the foregoing, the Court concludes that the statutory factors do not favor claimant's application and, therefore, denies permission to file a late claim. As previously noted, the Court grants defendant's cross-motion to dismiss the claim. The Clerk of the Court is directed to close the file.


September 30, 2004
Hauppauge, New York

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




[1]The notice of intention was sent certified mail, return receipt requested.
[2]The following papers have been read and considered on claimant's motion and defendant's cross-motion: Notice of Motion dated April 29, 2004 and filed May 17, 2004; Affirmation in Support of Francesco Pomara, Jr., Esq. with annexed Exhibits A-F dated May 3, 2004 and filed May 17, 2004; Notice of Cross-Motion dated June 2, 2004 and filed June 7, 2004; Affirmation in Support of Cross-Motion and in Opposition to Claimant's Motion of Wendy K. Carrano, Esq. with annexed Exhibits A-F dated June 2, 2004 and filed June 7, 2004; Affirmation in Opposition to Cross-Motion of Francesco Pomara, Jr., Esq. with annexed Exhibits A-B dated June 15, 2004 and filed June 18, 2004; Reply Affirmation of Wendy K. Carrano, Esq. with annexed Exhibit A dated July 13, 2004 and filed July 13, 2004.
[3]In this matter, the State is not represented by the Attorney General's office, but rather by outside counsel. This representation is due to the insurance which the league must provide to defend and indemnify the State.
[4]The only testimony as to whether the tractor was running or not is that of the State's witness. Claimant, in his deposition, says that he did not see or hear the tractor.