New York State Court of Claims

New York State Court of Claims

ATTARD v. THE STATE OF NEW YORK, #2004-034-559, , Motion No. M-68366


Claimant's application for permission to file and serve a late claim is denied, in part without prejudice. Claimant has failed to establish a colorable basis for imposing liability against the State. Additionally, Claimant failed to address the existence of another remedy, the excuse for the delay and the Defendant's opportunity to investigate. Moreover, Claimant neglected to provide an expert affidavit with regard to the proper training process of a 16-year-old in the use of firearms.

Case Information

DAVID ATTARD, Individually and on behalf of REBECCA ATTARD, an Infant The caption has been amended sua sponte to reflect the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The 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: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 23, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were submitted in Claimants' application to late file under Court of Claims Act §10 (6):
1. Notice of Motion, dated April 21, 2004, filed April 23, 2004;

2. Affidavit of J. Kevin Laumer, sworn to April 7, 2004, in support of the motion;
3. Affidavit of David Attard, sworn to April 15, 2004, in support of the motion;

4. Proposed "Notice of Intention to Make a Claim," verified April 15, 2004;

5. Affidavit of Wendy E. Morcio, sworn to June 7, 2004, filed June 8, 2004, in opposition to the motion;

6. Affidavit of David L. Kiel, sworn to June 7, 2004, filed June 8, 2004.

On review the Court will deny the motion, in part without prejudice.

This application arises from an incident that allegedly occurred on April 19, 2003, during a gun safety class at the Ellery Rod and Gun Club, in Ellery, New York. The infant Claimant, Rebecca Attard, who was then age 16, participated in the class. Her father, Claimant David Attard, also attended the event, apparently as an observer. As part of the program the infant Claimant was allegedly instructed on how to hold and fire a shotgun.

Claimants contend that the program trainer improperly directed Ms. Attard to use a "full size" 12-gauge shotgun that was not suitable to her age, strength and size, and failed to adequately instruct and supervise her in the proper positioning of the shotgun against her shoulder. As a result, the infant Claimant sustained a bruising to her right upper arm. The Attards assert that the injury later progressed to osteomyelitus, which in turn caused damage to her humerus, so as to require multiple surgeries. The liability of the State appears to be premised on the role the Department of Environmental Conservation (DEC) served in allegedly training the course instructor, and in its purported control and supervision of the gun safety course conducted at the Ellery Rod and Gun Club.

Court of Claims Act § 10 (3) compels that a claim to recover for negligence be filed and served within 90 days of accrual, unless a notice of intention is served upon the Attorney General within that same time limit, in which case the allowable period for commencement would extend to two years from accrual. Those time limits are jurisdictional in nature, and are to be strictly construed as conditions to the State's waiver of its sovereign immunity (Alston v State of New York, 97 NY2d 159 [2001]; see also Welch v State of New York, 286 AD2d 496, 497-498 [2001]). Those time constraints do not apply to a person under a legal disability, who instead is afforded two years from the removal of such disability to bring suit (see NY Const, art III, § 19; Court of Claims Act, § 10 [5]). While infancy is one such disability (see CPLR 208; Weber v State of New York, 267 App Div 325, 327 [1944]), the child's disability toll does not inure to the benefit of the parent in the pursuit of a derivative claim (Leibowitz v State of New York, 82 Misc 2d 424 [1975]). Here, Mr. Attard did not take timely action as set forth in section 10 (3), and has now sought leave under Court of Claims Act § 10 (6) to pursue his derivative claim for recovery of the medical expenses he has or will expend in the treatment of his daughter's injuries, as well as the loss of her household services. It appears that Mr. Attard intends to pursue such rights independent of any suit that Ms. Attard might file at a future date. Nevertheless, he has captioned this matter as one seeking recovery, in part, on behalf of his daughter.

To the extent Claimants seek leave to late file and serve a "Notice of Intention to Make a Claim," such relief must be denied. Court of Claims Act § 10 (6) has established a single discretionary remedy for persons who fail to either serve a notice of intention or file and serve a claim proper within the time constraints set forth within section 10. That remedy would be a late claim, and no allowance otherwise exists within the Court of Claims Act for the relief now sought. The lack of discretionary authority to grant leave with respect to a notice of intention was recognized in DeHart v State of New York, 92 Misc 2d 631, 634-637 (1977), wherein the Court of Claims (Moriarty, J.) provided persuasive justification for rejecting an earlier unreported decision to the contrary. Moreover, a grant of late service of a notice of intention would do little to promote the dual purposes such notices are intended to advance. Those purposes have been recognized as follows: to extend the time limitation for the commencement of suit beyond the 90-day limits otherwise set forth within Court of Claims Act § 10; and to enable the State to conduct a prompt investigation of a possible claim, in order to ascertain the existence and extent of its liability (see Schmidt v State of New York, 279 AD2d 62, 65-66 [2000]). With respect to the former, a late notice allowance would not so much work to extend a time limitation as it would to afford a remedial benefit to a claimant who already had missed the 90-day deadline. As to the latter, which has been recognized as the primary purpose of the notice requirement (see DeHart v State of New York, 92 Misc 2d at 637), the grant of a late notice of intention clearly could not facilitate the investigation of claims for the benefit of the State within the anticipated 90-day period following accrual. The Court also notes that section 10 (3) was amended in 1995 to end an earlier requirement that a notice of intention be filed as well as served. Lastly, recognition of such a remedy is unnecessary, since section 10 (6) expressly affords a similar form of relief to those who have failed to take timely action to pursue their claims.

The Court will next consider whether to grant leave to file and serve a late claim. Such discretionary relief is authorized under Court of Claims Act § 10 (6), which identifies six factors among those to be weighed in reviewing such an application. The presence or absence of any specific factor is not determinative (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]; Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 [1991]). 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. Section 10 (6) also compels a movant to attach a copy of the proposed claim to facilitate such a review (see Davis v State of New York, 28 AD2d 609, 610 [1967][addressing former section 10 (5)]). Although Claimants have attached a copy of a proposed Notice of Intention to Make a Claim, the Court will consider that submission as constituting the proposed claim in conducting its review.

Of the six factors set forth in section 10 (6), 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 [2002]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). 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 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).

As presented the proposed claim must be deemed defective in failing to identify a colorable basis for imposing liability against the State. It is undisputed that the DEC did not operate the gun club where the training occurred. So also, it is clear from the affidavit of David L. Kiel, an employee of the DEC who administered the program in question, that the unnamed individual who conducted the class on April 19, 2003 would not have been an employee of the State, and instead was a volunteer. In contrast, Mr. Attard's allegation that the course "was controlled, operated, maintained and supervised by the Department of Environmental Conservation" is devoid of any evidentiary support. While the instructor's volunteer status might not preclude recovery against the State, particularly in light of ECL § 11-0713 (3) (d), which empowers the DEC to designate persons to act "as its agent in the giving of instruction and the making of certification," Claimants have failed in their burden of providing some factual support for that potential ground for imposing liability. More critically, Mr. Attard has asserted a claim for recovery that is not readily assessable without expert support. Questions regarding the proper gauge shotgun for training a 16-year-old, the proper position of such a firearm, and the degree of oversight to be used in the training process, involve matters of skill and judgment that cannot be relied upon in this motion to the extent premised upon a conclusory lay opinion (see Jolley v State of New York, 106 Misc 2d 550 [1980] [demonstration of appearance of merit in application for leave to commence medical malpractice claim must be supported by statement of individual with knowledge or expertise required to support cause of action pleaded]; Nyberg v State of New York, 154 Misc 2d 199 [1992] [appearance of merit in late claim application premised upon alleged negligent highway construction and design requires sworn opinion of someone with related expertise]).

Although the absence of merit alone would support denial of the motion where leave to resubmit is granted (see Jolley, 106 Misc 2d at 551-552 [1980]), the Court will briefly address the other statutory factors under section 10 (6).

Mr. Attard has failed to address whether another remedy, such as a suit against the gun club or instructor, has been explored. The propounded excuse for failing to take timely action is similarly lacking in support to date. In that regard the Court notes that counsel has represented that he had retained an investigator in June of 2003 to explore the possible involvement of other agencies in the gun safety course, and learned at some point in July of 2003 of a claimed DEC investigation. It would thus appear that the claimed relationship between the class program and the DEC was known or readily apparent within the 90 days that followed accrual. Regarding notice of the essential facts constituting the claim, the Attards' counsel has claimed to have been advised that the DEC had conducted an investigation, although again in a conclusory fashion, without any factual support, or source for such information being revealed. That allegation has been disputed by Mr. Kiel, who has asserted that the DEC's sole notice regarding the accident was a telephone call, and that no investigation had occurred. The related factors of opportunity to investigate and prejudice were similarly addressed through the unsupported representation that an investigation had been conducted, an allegation that once again has been refuted by the DEC's representative.

Based upon the above, it is

ORDERED, that the motion for leave to file and serve a late notice of intention to file a claim is denied. Leave to file and serve a late claim is denied, without prejudice.

August 23, 2004
Buffalo, New York

Judge of the Court of Claims