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 ).
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;
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:
(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,
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
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
, 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
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
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
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.
Notice of Motion No. M-69629, dated January 16, 2005, and filed January 19,
Affirmation of Robert A. Quattrocci, Esq., in support of motion, dated January
16, 2005, with attached exhibits.
Affidavit of Peter Arsenault, AIA, NCARB, in support of motion, sworn to
January 5, 2005.
Proposed Claim, dated January 16, 2005.
Affidavit of Martin Hutchings, in support of motion, sworn to January 7, 2005,
with attached exhibits.
Memorandum of Law, in support of motion, dated February 18, 2005.
Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated February
16, 2005, and filed February 18, 2005, with attached exhibits.
Affidavit of Wendell B. Strum, in opposition to motion, sworn to February 10,
2005, with attachment.
Affidavit of Kevin J. Rice, in opposition to motion, sworn to February 10,
Affidavit of Matthew Lewis, in opposition to motion, sworn to February 14,
2005, with attachment.
Reply Affirmation of Robert A. Quattrocci, Esq., in support of motion, dated
February 18, 2005, and filed February 24, 2005, with attached exhibit.