New York State Court of Claims

New York State Court of Claims

MAIER v. THE STATE OF NEW YORK, #2005-010-050, Claim No. NONE, Motion No. M-70486


Synopsis


Claimant's late claim application is granted.

Case Information

UID:
2005-010-050
Claimant(s):
KATERI MAIER
Claimant short name:
MAIER
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-70486
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
FINKELSTEIN AND PARTNERS
By: Andrew L. Spitz, Esq.George Levy, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 7, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court and oral argument was heard on claimant's late claim application:
Notice of Motion, Attorney's Supporting Affirmation, Claimant's Supporting Affidavit, Affidavit of Accident Reconstructionist and Draft Investigation Report and Exhibits.....................................................................................................................1

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

Reply Affirmation.....................................................................................................3

The proposed claim alleges that at approximately 9:30 p.m. on August 4, 2002, claimant was a passenger in a vehicle driven by her friend, Jennifer Kallen. Kallen proceeded southbound on South Creek Road in the Town of Hyde Park, Dutchess County. South Creek Road is a town road which intersects with New York State Route 9G. Kallen failed to negotiate the curve of South Creek Road, thus exiting the roadway, striking an embankment, and becoming airborne. The car came to a rest in a wooded area.

Upon consideration of all the papers submitted and the arguments advanced in oral argument, the Court shall now render its decision on this late claim application.

The Court has considered all of the factors set forth in the Court of Claims Act, Section 10(6) with regard to the proposed claim. The most significant of the factors to be considered is the appearance of merit of a proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious.

Upon weighing of all the factors, the Court finds that claimant has not established, among other things, the appearance of merit of all the allegations set forth in the proposed claim. However, the Court does find that claimant has made a sufficient showing to warrant granting this late claim application only insofar as it is alleged that defendant was negligent in regard to the posting and maintenance of a "Stop Ahead" sign on the roadway where the accident occurred prior to that roadway's intersection with State Route 9G. The Court also notes that, as to this branch of the proposed claim, defendant did receive timely notice and there has been no showing of substantial prejudice to defendant with regard to this allegation. Accordingly, only that branch of claimant's late claim application is GRANTED and claimant's application is DENIED with regard to all other allegations of the proposed claim. Thus, claimant is directed to amend the proposed claim and, within 45 days, serve and file a new claim pursuant to Court of Claims Act Sections 10, 11 and 11-a.

It is noted that the Court's conclusion with regard to the appearance of merit of this allegation is limited to the Court's ruling on this motion and that a greater burden of proof rests upon claimant to prevail at trial.

November 7, 2005
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims