New York State Court of Claims

New York State Court of Claims

NATIONWIDE v. THE STATE OF NEW YORK, #2005-030-510, Claim No. 108309, Motion Nos. M-69367, CM-69416


Synopsis



Case Information

UID:
2005-030-510
Claimant(s):
NATIONWIDE MUTUAL INSURANCE COMPANY A/S/O NANCY ALMODOVAR AND BENNY ALMODOVAR
Claimant short name:
NATIONWIDE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108309
Motion number(s):
M-69367
Cross-motion number(s):
CM-69416
Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
D'AMBROSIO AND D'AMBROSIO, ESQS.BY: FRANK G. D'ESPOSITO
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JOHN M. HEALEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
February 14, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1 to 8 were read and considered on Defendant's Motion to Dismiss [M-69367] and Claimant's cross-motion for an order "permitting the Plaintiff to file a late notice of intention against the New York State Thruway Authority" (sic) [CM-69416]:
1,2 Notice of Motion; Affirmation in Support of Defendant's Motion to Dismiss by John M. Healey, Assistant Attorney General and attached exhibits

3,4 Notice of Cross-Motion; Affirmation by Frank G. D'Esposito, Counsel for Claimant, and attached exhibits

  1. Affirmation in Reply and Opposition by John M. Healey, Assistant Attorney General
6-8 Filed Papers: Claim, Amended Claim, Answer
MOTION TO DISMISS
Claimant alleges that a vehicle owned by the New York State Thruway Authority struck the vehicle owned by the Claimant insurance company's subrogors, Nancy and Benny Almodovar on or about January 1, 2003. A Notice of Intention to file a claim was served on the State of New York - the named Defendant herein - on or about September 26, 2003. [Affirmation in Support of Defendant's Motion to Dismiss, ¶ 3, Exhibit A]. A document entitled Verified Claim was served by regular mail on the New York State Thruway Authority on September 22, 2003. [Affirmation in Support of Defendant's Motion to Dismiss, ¶ 9, Exhibit C].[1] An Amended Verified Claim[2] was served[3] upon the State of New York on or about November 10, 2003, and filed at the same time.

In its Answer - which is responsive to the Amended Verified Claim - in addition to general denials, Defendant raises five affirmative defenses. The Third and Fifth Affirmative Defenses assert that the Court lacks jurisdiction over the claim because Claimant failed to timely file and serve the Claim upon the Attorney General either personally, or by certified mail, return receipt requested. Court of Claims Act §§10 and 11. The Fourth Affirmative Defense alleges that the Claim fails to state a cause of action against the State of New York since the vehicle which allegedly struck the Almodovar vehicle was not owned, operated or maintained by the named Defendant, the State of New York.

As conceded by Claimant, the Notice of Intention was not served within ninety (90) days of accrual of the claim, [See Affirmation by Frank G. D'Esposito, Page 1], and thus did not operate to toll the limitations period. See Court of Claims Act, §10(3).

Accordingly, although the Verified Amended Claim may have been served upon the State of New York and the New York State Thruway Authority, by certified mail, the Court lacks jurisdiction over the claim because it is untimely. Additionally, service of the Verified Claim by regular mail upon the State of New York and the New York State Thruway Authority was also insufficient to confer jurisdiction over the claim.

Finally, the claims do not state a cause of action against the State of New York, since they contain no allegations concerning the State.

In view of the foregoing, Defendant's motion to dismiss [M-69367] is hereby granted, and Claim Number 108309 is dismissed in its entirety.

CROSS-MOTION FOR PERMISSION TO SERVE LATE CLAIM

Claimant moves for permission to file a late notice of intention against the New York State Thruway Authority. The Court of Claims Act does not provide for such relief, but rather allows a motion for permission to serve and file a late claim. The purpose of the Notice of Intention, other than extending the time in which to file a claim, is to provide notice to defendant within ninety (90) days of the accrual of a claim. If the ninety (90) days has passed without action by the potential claimant - either by properly serving a Notice of Intention or serving and filing a Claim - then the sole remedy is to request permission to late file a claim pursuant to Court of Claims Act §10(6). The court will deem the instant motion as requesting such relief and will consider the Verified Amended Claim as the proposed claim[4] in connection with this application.[5]

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.[6] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . . " Court of Claims Act § 10(6). Here, the applicable statute of limitations is three (3) years, thus the motion is timely. Civil Practice Law and Rules §214.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. See e.g. Jackson v State of New York, Claim No. None, M-64481 (Midey, J., February 28, 2002).

Claimant offers no excuse for failing to timely and properly serve the Claim upon the New York State Thruway Authority, thus this factor weighs against Claimant. The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State and the Thruway Authority, considered together, also weigh against granting Claimant's motion. As pointed out by the Assistant Attorney General, the police accident report does not suffice to show that the Thruway Authority had notice of the subject accident and an adequate opportunity to conduct an investigation. By themselves, accident reports do not constitute notice of the essential facts of the claim. Chergotis v State of New York, 259 App Div 369 (3d Dept 1940). Additionally, the ineffective Notice of Intention never found its way to the Thruway Authority, where it might have at least served as a trigger to an investigation, even though it lacks detail as to how any act or omissions by the Thruway Authority or its agents caused Claimant harm. The Court also finds that the passage of time has been such that both the State's and the Thruway Authority's ability to investigate are impeded to their prejudice. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual). Accordingly, these factors weigh against granting the motion.

As noted, Claimant need not establish its claim prima facie, but rather show the appearance of merit. Jackson v State of New York, supra. If the allegations in the Verified Amended Claim are accepted as true for the purposes of the motion, Claimant has not made the requisite showing of merit in order to permit late filing of its claim.

Initially, only the State of New York is named as defendant, and there are no allegations whatsoever concerning any conduct by the named defendant or its employees. With respect to the Thruway Authority as defendant, there is no description of how the accident occurred, or of how the Thruway Authority or its agents were negligent, indeed, there is no allegation of negligence at all. As noted by the Assistant Attorney General, it is the attorney for the Claimant who has verified the claim. There is no affidavit of merit, therefore, by someone with knowledge of the facts of the claim.

The Court cannot ascertain whether the particulars of the claim are stated. Court of Claims Act §11(b); See also 22 NYCRR §206.6.

Accordingly, Claimant's cross-motion [CM-69416] for permission to serve and file a late claim is in all respects denied.

February 14, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] An affidavit of service filed with the Claim indicates that the Attorney General was served by regular mail as well.
[2] The only discernable difference between the Claim, filed September 22, 2003 and apparently served by regular mail upon the New York State Thruway Authority on that date, and the Amended Claim, is that the Amended Claim contains numbered paragraphs as required. 22 NYCRR §206.6.
[3] An affidavit of service in the Clerk's file reflects service of the Amended Verified Claim by certified mail, on the Office of the Attorney General and the New York State Thruway Authority, but the Attorney General's Affirmation makes reference to being served with an Amended Verified Claim on November 10, 2003 by regular mail. [Affirmation in Support of Defendant's Motion to Dismiss, ¶ 4; Exhibit B].
[4] Court of Claims Act § 10(6) states in pertinent part: ". . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application. . . ."
[5] Although the Defendant does not concede that the Court may treat the application as one for permission to serve and file a late claim [See Affirmation in Reply and Opposition, ¶¶ 8, 9], the Court does so nonetheless, finding that whatever nomenclature was used here, clearly what Claimant intended was that the Amended Verified Claim attached to the moving papers serve as a proposed claim for late claim motion purposes.
[6] The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant's favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)["Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted)."]