New York State Court of Claims

New York State Court of Claims

BRANTLEY v. STATE OF NEW YORK, #2005-018-465, Claim No. 110366, Motion Nos. M-69752, M-69618


Claim No. 110366 is dismissed due to untimeliness. The Court grants permission to file a late claim application (Motion No. M-69618).

Case Information

YVONNE BRANTLEY, As Administratrix of the Estate of ERICTISHA J. TUCKER, Deceased, and WANDA J. BRANTLEY
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-69752, M-69618
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: ED J. THOMPSON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 28, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Currently before the Court, Defendant brings a motion to dismiss Claim No. 110366.

Claimants also bring a motion for permission to file a late claim.[1]
Motion to Dismiss M-69752
Defendant brings a motion to dismiss the claim which was filed and personally served upon the Attorney General on January 18, 2005. Defendant argues that the claim which asserts an accrual date of January 19, 2003, is untimely pursuant to Court of Claims Act § 10(3) and therefore requires dismissal. Claimants' counsel does not dispute the untimeliness of the claim but instead advises of the pending late claim application.

It appears to this Court that the claim is untimely and Defendant's motion is GRANTED. Claim No. 110366 is DISMISSED.
Late Claim Application Motion No. M-69618
The proposed claim attached to the motion documents[2] asserts that in 1997, Frank Nicoletta sold a 3.11 acre parcel of land to Aldi, Inc., on New York State Route 31, in the Village of Lyons, County of Wayne, State of New York. As part of the sales agreement, Nicoletta Building Contractors, Inc., (hereinafter NBC) was to construct an Aldi food store on the parcel. NBC studied potential traffic issues related to the new store to assess the need for a traffic light or left-turning lane. Thereafter, NBC engaged in discussions with New York State Department of Transportation (hereinafter DOT) regarding the need for a left-turn lane at the entrance to the parking lot to the new Aldi's food store. DOT advised Aldi, Inc. and NBC that a new left-turn lane was required based upon traffic studies. It was agreed that NBC would construct the new turning lane on Route 31 for Aldi, Inc. NBC, as part of the permit to construct the new turning lane, provided the State with a $300,000 bond. The DOT, Aldi, Inc. and NBC engaged in periodic communications regarding the procedure, requirements, and time-frame for completion of this left-hand turning lane. The new Aldi's food store was opened in 1998. Although the new turning lane was scheduled to be completed before the store opened, it was not.

On January 19, 2003, at approximately 2:40 p.m., Movant, Wanda Brantley, was driving her 1999 Pontiac sedan westbound on Route 31, preparing to turn left into the Aldi food store parking lot when her vehicle was struck from behind by another vehicle. The force of the impact pushed the Brantley vehicle into the eastbound lane of Route 31, where it was struck on the front passenger door by a tractor trailer. Movant, Wanda Brantley, was injured in the accident and her daughter, Erictisha J. Tucker, the front passenger, was thrown from the vehicle and ultimately died from her injuries. The new turning lane was not completed until months after this accident. The claim seeks damages for Movant, Wanda Brantley's, personal injuries and decedent, Erictisha J. Tucker's, pain and suffering and wrongful death. The claim alleges that the State has a non-delegable duty to keep its roadways in a reasonably safe condition, that it breached this duty when, despite its knowledge of the need for the left-hand turning lane prior to the opening of the Aldi's food store, permitted the store to open prior to construction of the lane. The claim also alleges that the State violated its own policies and procedures in failing to enforce its agreement with Aldi, Inc. and NBC for timely constructing this turning lane. Movants also allege that the State either created the dangerous condition or had constructive notice of it and failed to correct it in a timely manner.

Court of Claims Act § 10(6) requires that the Court, in deciding an application for permission to file a late claim give consideration to six factors: (1) whether there is a reasonable excuse for the delay in filing the claim; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a notice of intention resulted in substantial prejudice to the State; (6) whether there is any other available remedy, and any other relevant factors. There is no one factor that is determinative, rather it is a balancing of all of the factors that may warrant granting the application (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965).

The first factor is whether the delay in filing the claim is excusable. Movants' counsel asserts that the delay is attributable to their prosecution of a related action brought in Supreme Court against Aldi, Inc. and NBC. Movants' counsel indicates that Movants relied upon documentation from DOT that placed responsibility for the modification to the roadway upon Aldi, Inc. and NBC. According to Movants' counsel, it was not until Wayne County Supreme Court Judge, the Honorable Thomas VanStrydonck granted those two parties summary judgment that Movants had any reasonable basis to conclude that the State of New York could be responsible. With DOT's ownership of the roadway and involvement and oversight of the project, the potential for the State bearing some responsibility existed even prior to the summary judgment decision. Nonetheless, the documentation supports Movants' assertion that DOT placed the responsibility for actual construction of the modification of the roadway upon Aldi, Inc. and NBC, and Movants actively pursued their lawsuit in Supreme Court until the action against these parties was dismissed on summary judgment motion. Under these circumstances, the Court finds that Movants have presented a reasonable excuse (see Weaver v State of New York, 112 AD2d 416, 417; 47-Albany Troy Road Corp. v State of New York, 17 AD2d 892)

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movants assert that the State had actual notice of the events because a State Trooper responded to the scene of the accident and filed a detailed report. Movants also argue that the State had information regarding the accident history for this location from the follow-up traffic study performed by SRF & Associates in July 1999. Movants also attach a copy of a "NYSDOT Safety Information Management System Accident Verbal Description Report" for complete accident data through April 30, 2001, for a location 1/10th of a mile from the location of this accident as referenced on the police accident report (see Movants' Exhibit E)

The key question for purposes of the notice factor is whether the State had sufficient notice of the facts underlying this claim. It appears that Defendant had notice of the need for a left-hand turning lane at this location and of other similar accidents. However, there is no indication that the State had notice of the specific facts of this accident in a timely manner to permit an opportunity to investigate. The notice requirement is fulfilled when the facts giving rise to the claim have been timely provided to someone in authority in the department or agency responsible or to the legal department, such as the attorney general (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 7-8). Typically, a report made to a State Trooper is not considered notice to the State because the report does not alert anyone in authority with the appropriate State agency of a potential claim (Santana, 92 Misc 2d at 7-8; United Services Automobile Assoc. v State of New York, Ct Cl, unpublished decision of Read, J., filed January 5, 1999, Claim No. None, Motion No. M-58225). Without notice, the State would not have had the opportunity to timely investigate the circumstances of this claim. Yet, there appears to be ample documentation of the planning process and communication between the parties, the plans for a left-turning lane at this location as well as two traffic studies, and a very detailed police accident report of this accident. Under the circumstances, it seems unlikely that the State will suffer any prejudice if permission to file this late claim is granted.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. A proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Santana, 92 Misc 2d at 1,11). Defendant argues that the State's actions regarding the installation of a left turning lane at this location are subject to qualified immunity under Weiss v Fote, 7 NY2d 579. It is Defendant's position that the decision to forego cashing in the bond posted by NBC and to wait for Aldi, Inc. and NBC to design and construct the left-hand turning lane was a discretionary one constrained by budgetary limitations, and therefore, subject to qualified immunity. The affidavit of Larry R. Sherman, an engineer with DOT, provides that if the bond had been cashed in the funds would have gone into the State's general fund, not DOT's budget. As a result, the project would have had to be added to the department's capital program, resulting in additional delays.

In the realm of highway planning decisions under Weiss, 7 NY2d 579, 588, the State is entitled to qualified immunity for a duly executed highway safety plan unless there is proof that the plan evolved without adequate study or lacked a reasonable basis. At this juncture, Movants have only the burden to come forward with minimal proof, that is to show that the proposed claim is not patently groundless. Movants have come forward with documentation in the form of the deposition testimony of Lewis Kibling, Director of Real Estate for Aldi, Inc., New York NSC indicating that DOT permission had to be obtained prior to the store opening because the State was going to block access to the new Aldi's store from Route 31 since the turning lane had not been constructed. According to Mr. Kibling, a meeting was held, with DOT representatives and NBC. As a result, NBC posted the $300,000 bond. The store opened and DOT sought no specific date for completion of the turning lane, other than that it needed to be completed "immediately," (Movants' Exhibit C, page 62, line 21-24). Subsequent to the opening of this new Aldi's store there were several accidents in this general location before Movant, Wanda Brantley's, accident. From the State's correspondence, DOT considered this a safety issue which needed to be completed as soon as practical. Under these circumstances, whether the State's inaction was reasonable in light of the accident history and the State's admitted view of this project as one of "time is of the essence" establish, for purposes of this motion, a potentially meritorious cause of action (see Friedman v State of New York, 67 NY2d 271, 286). The State's immunity is not absolute but qualified, and there is enough here for Movants to have met their minimal burden on this motion. This factor weighs in favor of granting the application.

The final factor is whether the Movants have any other available remedy. Movants have a pending lawsuit against the owner and driver of the vehicle which struck the back of Movant, Wanda Brantley's, vehicle. Thus, another remedy is available.

Accordingly, upon balancing all of the factors in Court of Claims Act § 10(6), this Court GRANTS the Movants' motion to permit the late filing and serving of the proposed claim. Movants should file, pay the filing fee (Court of Claims Act § 11-a) and properly serve the proposed claim in accordance with Court of Claims Act §§ 10 and 11 and all other applicable statutes and Court rules within 45 days of the date this Decision and Order is filed with the Clerk of the Court.

April 28, 2005
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Motion No. M-69752

Notice of Motion....................................................................................................1

Affirmation of Ed J. Thompson, Esquire, Assistant Attorney General

in support....................................................................................................2

Affirmation of Timothy R. Mandronico, Esquire, in opposition............................3

Motion No. M-69618

Notice of Motion.....................................................................................................4

Affidavit of Timothy R. Mandronico, Esquire, in support, with exhibits

attached thereto............................................................................................5

Memorandum of Law by Movants in support..........................................................6

Affirmation of Ed J. Thompson, Esquire, Assistant Attorney General

in opposition................................................................................................ 7

[1]Actually the late claim motion was filed at the same time as the claim (Claim No. 110366) and prior to the motion to dismiss. However, the Court will address the motion to dismiss first.
[2] This is the same claim as Claim No. 110366.