New York State Court of Claims

New York State Court of Claims

ONE BEACON v. STATE OF NEW YORK, #2004-034-514, , Motion No. M-67924


Case Information

ONE BEACON INSURANCE COMPANY, as Subrogee of Design for Industry, Inc. Caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant[1] has applied for leave to file a late claim pursuant to Court of Claims Act § 10 (6). The following papers have been submitted for review:
1. Notice of Motion, dated January 14, 2004, filed January 20, 2004;
2. Affidavit of Dave Jensen, sworn to December 29, 2003, with exhibit attached, and

affirmation of Lawrence J. Regan, Esq., affirmed January 14, 2004, in support of the application;
3. Proposed Claim, unverified, attached to the application as Exhibit A;

4. Affidavit in Opposition to Claimant's Motion for Permission to File a Late Claim of William D. Lonergan, sworn to February 9, 2004, filed February 10, 2004;

5. Reply Affidavit of Lawrence J. Regan, Esq., sworn to February 11, 2004, filed February 17, 2004;

6. Affidavit of John R. Mann, in support of the application, sworn to February 11, 2004, filed February 17, 2004.

On consideration the Court will deny the requested relief, without prejudice to a further application.

Claimant is an insurance company. Its insured, Design for Industry, Inc., allegedly contracted with the State University of New York at Buffalo for the supply of a number of polycarbon banners to the university. The vendor subsequently shipped those items to the university on or about March 17, 2003, using 123 Delivery Corporation (123 Delivery) to effectuate that delivery. Several days later representatives of the university contacted 123 Delivery to pick up and return the banners to the vendor, apparently because they had become damaged. Claimant, as the purported subrogee of Design for Industry, Inc., subsequently brought suit against the shipper. However, based upon representations by the shipper that it had delivered the banners to the university in an undamaged condition, Claimant now believes that the university may be responsible for the damage to the banners, and seeks to pursue a claim against the State in the sum of $9,731.00. It appears that One Beacon and 123 Delivery have agreed to stay further proceedings in the related action in the interim.

Claimant did not serve a notice of intention to file a claim or serve and file a claim proper within ninety days following the incident, as required by Court of Claims Act § 10 (3). Discretionary relief from that failure to comply with those statutory requirements is authorized under Court of Claims Act § 10 (6). That section delineates six factors among those to be considered in reviewing an application for such relief, with the presence or absence of any one factor not determinative (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981; Matter of Gavigan v State of New York, 176 AD2d 1117, 1118). Those factors consist of the following: whether the delay in filing the claim was excusable; whether the State had notice of the essential facts constituting the claim; whether the State had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file and serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and whether the Claimant has any other available remedy.

Of the six factors, the appearance of merit has been characterized as the most decisive, since it would be futile to permit a meritless claim to proceed (see Dippolito v State of New York, 192 Misc 2d 395, 396-397; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). To meet that burden a movant must establish: that the proposed claim is not patently groundless, frivolous or legally defective; and that from a review of the entire record there is reasonable cause to believe that a valid claim exists (see Dippolito v State of New York, 192 Misc 2d at 396-397; Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12). Here, Claimant has failed in its burden in each of those two respects. First, the proposed claim is legally defective in that it fails to adequately set forth the location of the incident. Court of Claims Act § 11 (b) prescribes inter alia that "[t]he claim shall state the time when and the place where such claim arose." That pleading requirement for claims and notices of intention is jurisdictional in nature, since the State's waiver of immunity from suits for money damages under Court of Claims Act § 8 is conditioned upon compliance with statutory requirements that extend to section 11, and which are to be strictly construed (see Lepkowski v State of New York, 1 NY3d 201, 206-207). The location of an incident must be set forth with sufficient definiteness to enable the State to promptly investigate the matter (see Cobin v State of New York, 234 AD2d 498, 499 [holding that notice of intention that placed location of incident "on the boardwalk at Jones Beach, County of Nassau, State of New York, in the East Quarter Circle, or its vicinity" was not sufficiently specific, and jurisdictionally defective]; Schneider v State of New York, 234 AD2d 357 [holding that notice of intention and claim that alleged that a fall occurred "in the picnic area adjacent to the parking area" at Heckscher State Park was insufficient where park had numerous picnic areas located adjacent to parking area]). Similarly, Claimant's reference in the proposed Claim to "the State University of New York at Buffalo in Buffalo, New York" must be deemed jurisdictionally deficient, since the university consists of numerous buildings and departments, located on three separate campuses.

So also, from review of the submissions the Court cannot find reasonable cause to believe that a valid cause of action exists. Ordinarily, such a review would extend to the entire record, including the proposed claim and all affidavits and exhibits (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11), with the allegations therein deemed true for purposes of the motion (see Jolley v State of New York, 106 Misc 2d 550, 551). However, that rule regarding the presumptive truth of allegations "benefits only the statements of an individual who has the knowledge or expertise required to support the cause of action pleaded" (Jolley v State of New York, 106 Misc 2d at 551-552). The Court has been presented with a proposed Claim that is not verified, as well as affidavits from the insuring subrogee and delivery service that are not based on knowledge or other evidentiary support. Moreover, Claimant's representative has failed to allege that One Beacon had actually paid its insured, and thereby support its status as subrogee (see Federal Ins. Co. v Andersen & Co., 75 NY2d 366, 372 [insurer's subrogation rights are derivative, and accrue upon payment of the loss]), and establish some factual basis for the dollar amount of the proposed Claim. No affidavit or other documentation on behalf of Design for Industry, Inc. has been tendered, such that matters involving its agreement with the university, the condition of the banners before and after delivery, and its losses by reason of the occurrence are all matters of conjecture. For those reasons the Court cannot find that Claimant has established an appearance of merit.

Although the absence of merit alone should support denial of the motion where leave to resubmit is granted (Jolley v State of New York, supra), the Court will briefly address the remaining five statutory factors under section 10 (6).

Any excuse or explanation for the failure to act within ninety days of accrual must fail for reasons similar to those addressed to merit. Design for Industry, Inc. has not submitted any explanation for its lack of direct action over the statutory period. So also, the insurer has failed to explain whether and when it became entitled to act as subrogee, and why it initially chose to sue the shipper without also commencing action against the State. The explanations for the late filing set forth by counsel for One Beacon are devoid of any time references, and vague and conclusory in regards to the various determinations set forth therein.

Three interrelated factors, notice to Defendant, the opportunity to investigate and substantial prejudice are similarly lacking in support, again by reason of the lack of an affidavit or other submission from Design for Industry, Inc. The Court understands that if the university had called the vendor and 123 Delivery to pick up and return the banners some representative would likely have had knowledge of issues raised herein. Once again, however, Claimant has relied upon allegations that are not on knowledge, and which fail to identify the department and representatives within the university which purchased and returned the banners.

Regarding the existence of another remedy, Claimant has set forth reason to believe that recovery might not be likely against the shipper. That factor, however, would not outweigh its failure to support the other statutory considerations within section 10 (6).

Based upon the above, it is

ORDERED, that Claimant's motion for leave to file a late claim is denied, without prejudice to a proper application pursuant to Court of Claims Act § 10 (6).

March 1, 2004
Buffalo, New York

Judge of the Court of Claims

[1]Identified in the submissions as Plaintiff.