New York State Court of Claims

New York State Court of Claims

LANCER v. THE STATE OF NEW YORK, #2005-010-003, Claim No. NONE, Motion No. M-69364


Synopsis


Claimant's motion for leave to serve and file a late claim was granted as the Court found that the proposed claim had an appearance of merit.

Case Information

UID:
2005-010-003
Claimant(s):
LANCER INSURANCE COMPANY as subrogee of ANNA'S AIRPORT & LIMOUSINE SERVICE
Claimant short name:
LANCER
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-69364
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
NESCI, KEANE, PIEKARSKI, KEOGH & CORRIGAN, ESQS.By: Scott Mathless, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 11, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's motion and oral argument was heard on February 10, 2005:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Attorney's Affirmation in Opposition.........................................................................2

Claimant seeks an order granting it leave to serve and file a late claim for property damage and for that claim to be consolidated[1] with Claim No. 109135. The proposed claim arises out of the same motor vehicle accident which is brought by the operator of the vehicle insured by claimant. The accident occurred on January 7, 2004 when the vehicle of claimant's insured was struck by a snow plow operated by defendant. Claimant asserts that it sustained property damage in the amount of $9,025 which it paid to its policy holder for damage sustained to its vehicle in the accident.

The proposed claim alleges that the accident was due to the reckless disregard of the snowplow operator in "attempting a u-turn from the center lane of the roadway, in being inattentive, in failing to yield the right of way" (Ex. A, ¶2). Claimant includes an accident report which states:
"VEHICLE #1 NORTHBOUND I684 IN THE MIDDLE CHANGES INTO THE LEFT LANE TO PASS VEHICLE #2 (DOT SANDER) WHICH WAS TRAVELING SLOWLY IN THE MIDDLE LANE WITH WARNING LIGHTS FLASHING. VEHICLE #2 PUT ON LEFT TURN SIGNAL AND TURNS INTO THE MARK U-TURN AT THE WESTCHESTER/PUTNAM COUNTY LINE FROM THE MIDDLE LANE STRIKING VEHICLE #1."

(Ex. B).

The Court has considered all of the papers and the points made during oral argument. While defendant initially submitted opposition papers to claimant's application, at oral argument, defendant's attorney conceded that he could not demonstrate any undue prejudice to defendant if the Court were to grant claimant's motion. Upon consideration of all the relevant factors, the Court rendered a decision from the bench. The Court found that the proposed claim had an appearance of merit and GRANTED claimant's application for leave to serve and to file a late claim and for it to be tried jointly with Claim No. 109135. The Court directed claimant to serve the claim upon defendant and the attorney for Claim No. 109135, and to file that claim with the Clerk of the Court within 30 days of file-stamping of this Order in accordance with Sections 10, 11 and 11-a of the Court of Claims Act.

March 11, 2005
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] While claimant seeks consolidation of the claims, a joint trial is the more appropriate relief.