New York State Court of Claims

New York State Court of Claims

SCHEPART v. STATE OF NEW YORK, #2004-034-593, , Motion No. M-68986


Leave to file a late claim is denied. Claimant failed to establish merit and failed to provide expert opinion on roadway design. Morever, the delay is not excusable. Other remedies exist and delay has prejudiced the State's opportunity to investigate.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

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: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 8, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This is an application for leave to late file a claim. The following papers have been submitted for review:

1. Notice of Motion, dated August 17, 2004, filed August 23, 2004;

2. Attorney's Affirmation in Support of Motion for Leave to Serve a Late Claim of Joseph G. Krenitsky, dated August 17, 2004, with attached exhibits;

3. Affidavit of Brian S. Schepart, sworn to August 17, 2004;

4. Affidavit in Opposition of Gregory P. Miller, sworn to September 10, 2004, filed September 13, 2004, with attached exhibits.

This motion arises from a bicycle accident that allegedly occurred on August 4, 2003, between the hours of 7:30 and 8:00 p.m., on the riverwalk on Squaw Island, in the City of Buffalo. Claimant contends that as he rode his bicycle on the pathway he collided with one of the several concrete pillars that had been constructed across the path, apparently to prevent use by motor vehicles. He subsequently filed a timely notice of claim against the City of Buffalo, and was later granted leave to file a late notice of claim against the County of Erie. He then filed this motion August 23, 2004, a little more than one year after the incident. For reasons that follow the Court will deny the requested relief.

Court of Claims Act § 10 (3) compels that a claim to recover for negligence or other unintentional tort 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 limitations are jurisdictional in nature, and are to be strictly construed as conditions to the State's waiver of 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]). Relief from the failure to take timely action is authorized under Court of Claims Act §10 (6), which identifies six factors among those to be considered in 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 movant has any other available remedy.

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]). In that regard there exists a marked distinction between this late claim review and the late notice of claim application against the County of Erie, since the appearance of merit is not listed as a factor for consideration within General Municipal Law § 50 (e) (5), and except where the claim is "patently meritless," is not to be considered (Weiss v City of New York, 237 AD2d 212, 213 [1997]). To meet his burden of establishing merit herein Claimant 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, 192 Misc 2d at 396-397; Matter of Santana, 92 Misc 2d at 11-12).

Claimant has failed to set forth any basis for finding merit. It is Claimant's position that the City of Buffalo owns the riverwalk, and that the County of Erie has at least some maintenance responsibilities. There is no evidence that the State owned or constructed the walkway in question, or had any role in the installation or maintenance of the barriers that Claimant apparently struck. That an unnamed attorney representing another party expressed a belief that the State was involved in the development or construction of the path cannot substitute for some showing on knowledge. Likewise, and contrary to Claimant's assertion, the several drawings submitted by Claimant fail to demonstrate an ownership or other basis for considering liability against the State.

Claimant's allegations that the barriers were not sufficiently marked and positioned to allow for reasonable observation are conclusory. In response the State has submitted photographs of the barriers, which appear to be open and obvious. Defendant also has noted that the accident occurred during daylight hours. For those reasons Claimant's failure to explain why markings were necessary in the exercise of due care renders his allegations of negligence questionable.

Claimant's reliance on expert evaluations is similarly lacking in any evidentiary support. Where the merits of a proposed claim are dependent upon assessments beyond the knowledge of a layperson some evidentiary submission from an expert will be required to establish merit (see Matter of Perez v State of New York, 293 AD2d 918 [2002] [expert medical evidence required in late claim application against State for malpractice, to establish that diagnosis and treatment deviated from accepted practices and standards]; Nyberg v State of New York, 154 Misc 2d 199 [1992] [late claim application against State based upon negligent highway design and construction was deficient in absence of sworn opinion of person with related expertise]). Counsel's allegation that he has talked with an expert in bike path design is insufficient to sustain that burden.

Several other factors also support the denial of the motion. The excuse tendered, that Claimant was initially unaware of the State's possible ownership or construction of the riverwalk, and instead believed that the City of Buffalo and County of Erie were responsible, is not an acceptable explanation (see Erca v State of New York, 51 AD2d 611, 612 [1976], affd 42 NY2d 854 [1977] [mistake as to whether bridge controlled by State or Thruway Authority insufficient excuse]; see also Gatti v State of New York, 90 AD2d 840 [1982] [mistaken belief that road was controlled by town, rather than State was not reasonable excuse]). Such is particularly the case where the delay, here one year, is fairly lengthy, and is no way attributable to any mistaken representations by the State or another governmental defendant (compare Weaver v State of New York, 112 AD2d 416 [1985] [delay of approximately 16 days beyond 90-day time limits excused when based upon county's initial claim of ownership of road where accident occurred]). The existence of another remedy also appears to weigh against Claimant, based upon the pending claim against the City of Buffalo. Moreover, while Claimant has alleged that the role of the County of Erie in maintaining the riverwalk under its agreement with the City may be limited, he has not foreclosed the prospect of suit against that entity.

The three remaining factors within section 10 (6) also tend to weigh against the grant of relief. It is undisputed that the State did not receive timely notice of the essential facts constituting the claim. Although Defendant has not set forth any specific showing of prejudice or inability to investigate, substantial prejudice has been recognized as resulting from significant delay in acquiring actual knowledge itself (see Matter of Maurantonio v State of New York, 266 AD2d 290, 291 [1999]) [eight-month delay in application where State lacked timely actual knowledge created substantial prejudice in maintaining defense]. Here, the total delay was even longer, 12 months. Thus, even assuming that the riverwalk has not been modified over the past year, some prejudice must be recognized from Claimant's delay in pursuing this matter. However, on the submissions the Court will accept that Defendant should be able to conduct an investigation, even if somewhat impaired by the passage of time.

Based upon the foregoing, it is

ORDERED, that Claimant's motion to late file a claim is denied. The Clerk of the Court is directed to close the file.

November 8, 2004
Buffalo, New York

Judge of the Court of Claims