New York State Court of Claims

New York State Court of Claims

HUTCHINGS v. THE STATE OF NEW YORK, #2005-019-517, Claim No. NONE, Motion No. M-69629


Claimant's motion for permission to late file claim relative to moped accident allegedly caused by height differential between bridge and roadway is granted.

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:
STANLEY LAW OFFICES, LLPBY: Robert A. Quattrocci, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 9, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

The proposed claim alleges that claimant was injured on September 6, 2004 when his moped allegedly struck a bridge expansion joint with a height differential of approximately two inches causing claimant to be thrown from his moped. The bridge at issue is located on Fairview Avenue in Binghamton, New York and spans State Route 81 (hereinafter "Fairview Bridge").

As a threshold issue, the court has the jurisdiction to review and determine this motion since this motion was filed within the three year statute of limitations applicable to negligence causes of action. (CPLR 214; CCA 10 [6]).

The factors that the court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable;

2. the State had notice of the essential facts constituting the claim;
3. the State had an opportunity to investigate the circumstances underlying the claim;

4. the claim appears to be meritorious;
5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State; and

6. there is any other available remedy.

Whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, claimant must show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe a valid claim exists. (Id. at 11). While this standard clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections nor does it suggest that the court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case. (Id. at 11-12). It is well-settled that allegations contained "[i]n a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits [citations omitted]." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976).

The State concedes that it owns the Fairview Bridge. (Affidavit of Wendell B. Strum, ¶ 3). However, the State asserts that the City of Binghamton has maintenance responsibility of the Fairview Bridge including the expansion joints. In support of that contention, the State has submitted an affidavit from Wendell B. Strum, the State's Department of Transportation Bridge Maintenance Engineer for the region covering the Fairview Bridge. Mr. Strum avers, in part, as follows:
New York State Department of Transportation does not maintain Fairview Avenue in the City of Binghamton. The City of Binghamton is responsible for maintaining the roadway surface of Fairview Avenue in the City limits; including the bridge overpass and the overpass' metal expansion joints. (See Exhibit A).

(Affidavit of Wendell B. Strum, ¶ 5; emphasis added).

The court finds the State's proof that maintenance responsibility of the Fairview Bridge has been transferred to the City of Binghamton to be inconclusive. For instance, annexed as Exhibit A to the Affidavit of Mr. Strum is a photocopy of a table which lists the City of Binghamton under a column entitled "Agency" and "Sec. 340-b Highway Law" under a column entitled "Jurisdiction". However, the source of this table is not provided nor is any explanation or description of this table included. Further, in reply, claimant contends that this Exhibit A does not address the bridge, but rather the surface of Fairview Avenue. For the foregoing reasons, the court finds the State's denial of maintenance responsibility based on this unidentified and unexplained table to be inconclusive. (Marcus v State of New York, 172 AD2d 724, 724-725).

In any event, even if the City of Binghamton were found to have maintenance responsibility of the Fairview Bridge, the claimant has included allegations in his proposed claim that the State is liable as owner thereof for improper construction, inspection and failure to warn. More specifically, the proposed claim alleges that the State "[i]s responsible for the construction, maintenance and inspections of the [Fairview] bridge as well as has an obligation to warn motorists regarding hazards located on the road surface." (Proposed Claim, ¶ 4). As such, even if it is ultimately determined that the City of Binghamton has maintenance responsibility over the accident site, the State could still be held liable as owner based on these additional allegations.[1]

Additionally, on the issue of merit, claimant has submitted his own affidavit, as well as the affidavit of an architect, Peter Arsenault. The State has attempted to cast doubt on claimant's veracity and thus the merit of his proposed claim by pointing out that claimant described the cause of his accident differently immediately after the accident as compared to the version described herein. More specifically, the State has submitted the police report and affidavits of a responding police officer and paramedic averring that claimant initially described the cause of his fall as loose gravel as compared to the height differential of the expansion joint described herein. (State's Exhibits B & C). Although the court is entitled to consider credibility on a late filing motion (Matter of Galvin v State of New York, 176 AD2d 1185, lv denied 79 NY2d 753), the court does not find that these two versions are mutually exclusive nor has the court been presented with sufficient information to ascertain claimant's credibility with any degree of certainty at this stage. In sum, the court finds that the facts as alleged by claimant are sufficient to meet his minimal burden of establishing the proposed claim appear meritorious.

With respect to the remaining factors, claimant does not offer any explanation relative to the delay in filing this claim. Obviously, the lack of an excuse is insufficient and this factor weighs against claimant.

With respect to the factor of notice of the essential facts, both parties discuss this factor in relation to the State's notice of the existence of the alleged dangerous condition, rather than notice of the essential facts constituting the claim. The concept of notice in a late filing application relates to the State's notice of an incident after it has actually occurred, thereby permitting the State to investigate the claim if it so chooses. (Wolf v State of New York, 140 AD2d 692; Matter of Crawford v City Univ. of N. Y., 131 Misc 2d 1013, 1015-1016). Otherwise, in late filing motions, the State would be deemed to have notice of every claim arising from a defect or dangerous condition it created or knew or should have known existed, even before an incident occurs. For instance, here, claimant's expert, Peter Arsenault, asserts that the State had notice of this dangerous condition based upon evidence of repair attempts at the expansion joint.[2] Additionally, claimant argues that future discovery of the State's maintenance logs and inspection reports will show whether the State had notice of the height differential. While the State's prior repairs may have put the State on notice of the dangerous condition which may be relevant to claimant's burden if this matter reaches trial, there is no indication that the State had notice of the essential facts of this incident after the date of the accident and within the statutory ninety day period. (Turner v State of New York, 40 AD2d 923). In sum, the court finds that the State did not have notice of the essential facts constituting this claim. Inasmuch as the court finds the State did not have notice of the essential facts constituting this claim it must naturally follow the State did not have an opportunity to investigate this claim within the statutory period. As such, these two factors of notice of the essential facts constituting this claim and opportunity to investigate weigh against claimant's motion.

The next factor is whether claimant's failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State. The State argues that it will suffer substantial prejudice due to the changing nature of the accident site. The State attempts to establish a transitory condition by submitting photographs of the expansion joints showing a different height differential than shown in claimant's photographs. This claim accrued on September 6, 2004 meaning claimant's ninety days to comply with CCA 10 and 11 expired on December 6, 2004. This motion was filed on January 19, 2005, only 44 days after the expiration of the ninety day statutory period. There is nothing indicating that the additional 44 days would have changed the accident site to such a degree that the State would suffer substantial prejudice. In fact, none of the photographs submitted by either party is dated or, for that matter, correlated with one another with respect to the exact location shown on the bridge itself. The court finds that the lack of substantial prejudice weighs in claimant's favor.

With respect to the final factor of available alternate remedy, neither party addresses this factor. Although there remains the possibility that the City of Binghamton may be a responsible party such a conclusion is premature and, as such, the court finds this factor to weigh in claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds that three of the six factors, including the all important factor of merit, weigh in claimant's favor.

Accordingly, for the reasons stated above, IT IS ORDERED, that claimant's motion for permission to permit the late filing and service of his claim, M-69629, is GRANTED. Claimant shall file the proposed claim with the Clerk of the Court and serve a copy of the claim upon the Office of the Attorney General within sixty (60) days from the date of filing of this Decision & Order with the Clerk of this Court. Claimant is directed to revise the proposed claim to include the total sum claimed in accordance with CCA 11 (b). Finally, the service and filing of the claim shall be in conformity with all applicable statutes and rules of the court including CCA 10, 11 and 11-a.

March 9, 2005
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-69629, dated January 16, 2005, and filed January 19, 2005.
  2. Affirmation of Robert A. Quattrocci, Esq., in support of motion, dated January 16, 2005, with attached exhibits.
  3. Affidavit of Peter Arsenault, AIA, NCARB, in support of motion, sworn to January 5, 2005.
  4. Proposed Claim, dated January 16, 2005.
  5. Affidavit of Martin Hutchings, in support of motion, sworn to January 7, 2005, with attached exhibits.
  6. Memorandum of Law, in support of motion, dated February 18, 2005.
  7. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated February 16, 2005, and filed February 18, 2005, with attached exhibits.
  8. Affidavit of Wendell B. Strum, in opposition to motion, sworn to February 10, 2005, with attachment.
  9. Affidavit of Kevin J. Rice, in opposition to motion, sworn to February 10, 2005.
  10. Affidavit of Matthew Lewis, in opposition to motion, sworn to February 14, 2005, with attachment.
  11. Reply Affirmation of Robert A. Quattrocci, Esq., in support of motion, dated February 18, 2005, and filed February 24, 2005, with attached exhibit.

[1]The division of maintenance responsibility between the State and the City of Binghamton will obviously be a matter pursued in discovery. Based on this incomplete information regarding maintenance agreements, if any, between the State and the City of Binghamton, it is premature to address how this case relates to the various provisions of the Highway Law.
[2]Mr. Arsenault also uses the presence of weeds growing in the cracks to argue that these cracks have existed for a significant amount of time.