New York State Court of Claims

New York State Court of Claims

TEAL v. STATE OF NEW YORK, #2005-018-478, Claim No. None, Motion No. M-70155


Synopsis


Upon balancing the factors in Court of Claims Act § 10(6), this Court DENIES the motion.

Case Information

UID:
2005-018-478
Claimant(s):
DAVID TEAL The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
TEAL
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-70155
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CELLINO & BARNES, P.C.By: Sareer A. Fazili, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Roger B. Williams, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 3, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Movant brings a timely motion seeking permission to file a late claim[1] pursuant to Court

of Claims Act § 10(6)(CPLR 214[5]). Defendants oppose the motion.

The proposed claim and supporting documents assert that while Movant was driving his vehicle on Route 104 in Sodus at approximately 12:30 p.m., on November 4, 2004, he slowed to make a left-hand turn. As he slowed, he was struck from behind by a vehicle which caused his car to travel into the lane of oncoming traffic where he was struck a second time, almost head on, by a New York State Department of Transportation vehicle. As a result of this accident, he suffered significant injuries including a cervical vertebrae fracture. Movant alleges in the claim that the State is liable for this accident as a result of violations of New York State Vehicle and Traffic Law and common law principles of negligence.

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. Movant asserts that he did not retain his current law firm until very recently, and his prior attorney never brought a claim against the State. This factor weighs against granting movant permission to file a late claim as this is not an acceptable excuse (see Sevillia v State of New York, 91 AD2d 792; Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854).

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. Movant alleges that the State acquired actual knowledge of the facts and circumstances of this accident when a prompt accident report was filed by the New York State Police with the State. The presence of the State Trooper at the scene to take an accident report is not normally notice to the State (see Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 7). However, the involvement of a State Department of Transportation employee in the collision itself, coupled with the police report establishes that the State had notice and an opportunity to investigate in the absence of an affidavit from Terry Ketcham or someone with knowledge of the Department of Transportation's record keeping, advising that no report regarding this accident exists (see Wolf v State of New York, 140 AD2d 692; Matter of Santana, 92 Misc 2d at 8). These factors weigh in favor of granting Movant's application.

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 (Matter of Santana, 92 Misc 2d at 1,11). To establish that a proposed claim has the appearance of merit there must be factual allegations that "(1) identify the particular act or omission on which the State's liability is premised and (2) establish the causal connection between that alleged wrong and the [movant's] injury," (see Allen v State of New York, Ct Cl, Patti, J., signed December 31, 2001, Cl. No. 103513, Motion No. M-63467, CM-63604, UID # 2001-013-032). Reading Movant's affidavit and supporting documents, he has failed to meet this minimal burden. Despite making a conclusory allegation that the State employee violated New York State Vehicle and Traffic Law and common law principles of negligence, there is nothing alleged that would indicate that the State did anything wrong other than strike the Movant's vehicle when it was pushed into the oncoming lane of traffic. The State vehicle had the right-of-way and was entitled to anticipate that Movant and the driver of the other vehicle would obey the rules of the road (see Stiles v County of Dutchess, 278 AD2d 304, 305; Russo v Scibetti, 298 AD2d 514). There is simply no indication that the State employee did anything wrong. Under these circumstances, even with the minimal burden of proof on a late claim application, Movant has failed to met his burden to establish potential meritoriousness.

The final factor is whether the Movant has any other available remedy. Movant has an action against the driver of the vehicle which initially struck him from behind.

Accordingly, upon balancing all of the factors in Court of Claims Act § 10(6), this Court DENIES the Movant's motion to permit the late filing and serving of the proposed claim, without prejudice, if additional information regarding the State's alleged wrongdoing becomes available.




August 3, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


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


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


Affidavit of David Teal, in support, with exhibit A............................................2


Affidavit of Sareer Fazili, Esquire, in support, with exhibits attached

thereto......................................................................................................3


Affirmation of Roger B. Williams, Esquire, Assistant Attorney

General, in opposition..............................................................................4


Responding Affidavit of Sareer Fazili, Esquire, in support.................................5



[1]This motion is actually labeled as one seeking permission to file a late notice of intention to make a claim. However, since there is no such relief, the Court has considered the motion as one to file a late claim. The Court has also considered the attached proposed "Notice of Intention to Make Claim" as a proposed claim for purposes of the motion.