New York State Court of Claims

New York State Court of Claims

O'REILLY v. THE STATE OF NEW YORK, #2005-032-035, , Motion No. M-69603


Case Information

KIMBERLY O'REILLY Individually and as Parent and Natural Guardian of MIA WILSON, an Infant, and MADILYN WILSON, an Infant
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:
E. Stewart Jones, PLLCBy: George E. Lamarche, III, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michele M. Walls, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
April 18, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move this Court for leave to renew their prior motion to permit the filing of a late claim. Defendant opposes this relief arguing, inter alia, that claimants have failed to establish that new facts would change the prior determination.

In June 2004, this Court denied claimants' request for permission to file a late claim for injuries allegedly sustained by infant claimants Mia and Madilyn Wilson, and a derivative claim by their mother claimant Kimberly O'Reilly, as a result of an automobile accident in November 2003. The accident occurred when a vehicle carrying Mia and Madilyn Wilson collided with another vehicle on Route 9N in the Town of Greenfield, Saratoga County. The late claim was denied as claimants failed to establish the merit of the claim and to submit a proposed claim.[1] Claimants now seek to renew their prior motion and submit an affidavit by an engineer, who opines that defendant did not maintain Route 9N in a reasonably safe condition when it knew or should have known that a traffic signal was warranted at the intersection.

Initially, given that Mia and Madilyn Wilson are infants and, as such, under a legal disability (see CPLR 208), the infants time to file and serve a claim is tolled until two years after this disability is removed (see Henry v City of New York , 94 NY2d 275, 279-280 [1999]; Court of Claims § 10 [5]).[2] Accordingly, claimants' motion to renew with respect to these claimants is unnecessary, as their time to serve and file a claim has not expired.

With respect to the derivative claim of their mother, claimant Kimberly O'Reilly, CPLR 2221(e) provides that a motion to renew shall be based upon new facts not offered on the prior motion, that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion (see id). Here, O'Reilly argues that counsel was not retained in this action until after the 90-day period for serving a claim already had passed and, although an expert had been consulted, she moved for leave to file a late claim without an expert affidavit in the interests of expediency. Even if the Court considered her excuse a reasonable justification, O'Reilly has failed to demonstrate how the new facts would change the prior determination.

Claimants offer an affidavit by a civil engineer, Joseph McHugh, who states that he "conducted a thorough review of the circumstances surrounding" the accident, and there is a "questionable site distance problem" at the intersection where the accident occurred [Affirmation of George E. Lamarche, III dated December 22, 2004; exhibit "D"]. As a result, McHugh opines that a traffic signal at the intersection would have prevented the accident. The cursory affidavit is conclusory and speculative inasmuch as it fails to provide any specific facts or data upon which McHugh's conclusions are based (see Mullins v Town of Clarkstown 183 AD2d 1073,1075-1076 [3d Dept 1992], lv denied 80 NY2d 757 [1992]). Moreover, even though claimants' attorney indicates that there have been 16 accidents at this intersection during the six-year period between 1997 through 2003, claimants' expert does not draw any connection between the alleged 16 accidents and his conclusions, and there is no explanation as to how these prior accidents occurred (see, Schuster v McDonald 263 AD2d 473, 475 [1st Dept 1999]). As such, claimants have failed to establish that the new facts would change the prior determination as to O'Reilly.

Accordingly, claimants' motion for renewal is denied as to claimant Kimberly O'Reilly, and deemed unnecessary, and thus denied, as to claimants Mia and Madilyn Wilson.

April 18, 2005
Albany, New York
Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed January 11, 2005;

2. Affirmation of George E. Lamarche, III dated December 22, 2004; Exhibits A-E annexed;

3. Affirmation in Opposition of Michele M. Walls filed January 27, 2005; Exhibits A-B annexed.

Claimants submitted a "notice of intention to file a claim".
In making this determination, the Court notes that it was likewise unnecessary for claimants to have served a notice of intention within the 90-day period provided in Court of Claims Act § 10 (5), inasmuch as such notice is not a condition precedent to commencing an action in the Court of Claims (compare Harris v City of New York 297 AD2d 473 [1st Dept 2002], lv denied 99 NY2d 503 [2002] [holding infancy does not toll filing of notice of claim as the notice is a prerequisite to commencing an action against municipality under General Municipal Law § 50-e]).