New York State Court of Claims

New York State Court of Claims

VOLLMER v. THE STATE OF NEW YORK, #2004-033-093, Claim No. None, Motion Nos. M-68956, M-68957


Synopsis



Case Information

UID:
2004-033-093
Claimant(s):
DENISE and ALLAN VOLLMER
Claimant short name:
VOLLMER
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-68956, M-68957
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Kreines & EngelbergBy: Richard A. Engelberg, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 10, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Denise and Allan Vollmer (hereinafter "movants") have made separate motions for permission to file a late claim pursuant to Court of Claims Act §10(6)[1], relating to the alleged negligence of the State of New York on July 27, 2002.[2]


The movants were involved in a motor vehicle accident at the intersection of the South Service Road of the Long Island Expressway (State Route 495) and State Route 110. According to movants' papers, the State of New York (hereinafter "State") was negligent in allowing a dip in the road to exist. This dip, in conjunction with a defect in the movants' motor vehicle, caused the vehicle to flip and roll.

On October 16, 2002, movants served a notice of intention to file a claim upon the Attorney Generals Office in accord with the Court of Claims Act. Thereafter, on July 8, 2004, movants served a claim upon the Attorney General's Office in accord with the Court of Claims Act. Movants also served the claim upon the NYS Department of Transportation on July 7, 2004. On or about August 13, 2004, the State served its answer and demands for a bill of particulars and combined demands upon the movants. According to movants, the process server failed to file the claims with the Clerk of the Court of Claims.

Defendant opposes the motions.

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 State opposes the motions on several grounds. The State initially argues that the movants do not present a valid excuse to the late filing of the claims. Specifically, the State argues that "a red flag should have gone up when counsel received the affidavits of service of the ‘notices of claim' from the process server yet received no receipt of filing with the Clerk of the Court" (Affirmation of Assistant Attorney General ¶12). In addition, the State argues against the motion based upon the proposed claims being titled "Notice of Claim". The State posits the Court of Claims Act §10(6) only allows for the service of late "Claim" not "Notice of Claim". The State also argues against whether movants can present an appearance of merit without an expert's affidavit. 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 State offers no argument against these factors.

In examining the affirmations, affidavits and exhibits of each of the parties, the Court has determined that it need not reach the merits of the instant motions.

Court of Claims Act §11(c) states:
Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, or (ii) the manner of service requirements set forth in subdivision a of this section is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.
As noted above, the State answered the movants claims on or about August 13, 2004.[3] Included in the State's answers are nine affirmative defenses. None of the affirmative defenses object to the lack of filing of the claims with the Clerk's Office.[4]

Based upon the foregoing, the motions are denied as moot and movants are directed to file their claims with the Clerk of the Court, if not already done.



December 10, 2004
Hauppauge, New York

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




[1]The following papers have been read and considered on movants' motions: Notice of Motion of Denise Vollmer dated August 16, 2004 and filed August 18, 2004; Affirmation in Support of Richard A. Engelberg, Esq. with annexed Exhibits A-I dated August 16, 2004 and filed August 18, 2004; Notice of Motion of Allan Vollmer dated August 16, 2004 and filed August 18, 2004; Affirmation in Support of Richard A. Engelberg, Esq. with annexed Exhibits A-I dated August A-I dated August 16, 2004 and filed August 18, 2004; Affirmation in Opposition of Grace A. Brannigan, Esq. with annexed Exhibit A dated October 15, 2004 and filed October 19, 2004; Affirmation in Reply of Richard A. Engelberg, Esq. with annexed Exhibit A dated October 21, 2004 and filed October 22, 2004; Affirmation in Further Opposition of Grace A. Brannigan, Esq. dated October 27, 2004 and filed October 27, 2004.
[2]Although the motions are separate, they are identical in the relief sought, the exhibits attached and the incident from which the alleged claims arise. Therefore, the Court will consider both matters together.
[3]The Court notes defendant's answer despite the document being titled a "Notice of Claim."
[4]A red flag should have been raised to the Attorney General's office when an internal number of the Attorney General's Office was used in the caption, rather than a claim number provided by the Clerk's Office.