New York State Court of Claims

New York State Court of Claims

ANSELMO v. THE STATE OF NEW YORK, #2005-033-112, Claim No. None, Motion No. M-69130


Synopsis



Case Information

UID:
2005-033-112
Claimant(s):
JOHN ANSELMO
Claimant short name:
ANSELMO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-69130
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Asher & Associates, P.C.By: Roberta D. Asher, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 25, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion by John Anselmo (hereinafter “movant”) seeking an order allowing him to file a late claim pursuant to Court of Claims Act §10(6)[1]. The proposed claim alleges that movant was in an accident on a motorcycle caused by a pothole. According to the proposed claim, the accident occurred on September 25, 2001, in the hamlet of Mount Sinai, Town of Brookhaven, County of Suffolk, State of New York. In addition, movant asks the Court for an order allowing him to amend his notice of intention.[2]
In November 2001, movant retained counsel who served a notice of intention upon the Attorney General’s Office on December 17, 2001 which indicated that the accident took place on September 26, 2001. There is no time indicated for the accident and the location is described as “Rte 347 and Myrtle Street Mt. Sinai N.Y.”[3] (movant’s Exhibit A). On or about December 26, 2002, movant served a claim on the Attorney General’s Office. This claim was never filed with the Clerk of the Court. The Attorney General’s Office answered the claim on January 17, 2003. Since the claim was never filed with the Clerk of the Court, no conference has been held in this matter and the Court was not aware of this claim until the instant motion was filed on September 23, 2004.[4]

Movant’s reply papers rely on Sinacore v State of New York, 176 Misc 2d 1, for support. In Sinacore, the Court held that claimant’s motion to file a late claim was unnecessary because the State had not sufficiently raised a timeliness issue in its answer. Claimant sought to sue the State for an act which accrued prior to April 11, 1995. During April 1995, claimant sent a letter to the Attorney General’s Office but the Court held that the letter was insufficient to serve as a notice of intention. Thereafter, claimant pursued an action in Federal Court which was dismissed in the spring of 1997. Claimant then filed a claim on April 4, 1997. The Court found that the claim was filed more than two years after it had accrued. Despite claimant’s errors, the Court found that defendant had failed to plead the defense of untimeliness (Court of Claims Act §11[c]) with sufficient particularity and, therefore, waived the objections. During this period claimant had moved for permission to file a late claim. As defendant had waived the objections by failing to plead timeliness, the Court denied claimant’s motion to file a late claim as unnecessary.

Unlike the claimant in Sinacore, movant has never filed the claim. Movant correctly indicates that defendant never raised an affirmative defense as to the timely filing of the claim. Arguably, had movant filed the claim with the clerk’s office, then the ruling in Sinacore would apply. However, there is no claim before the Court. If movant were to file the claim at this point, it would be beyond the statute of limitations and the Court would be unable to grant movant a judgment (Court of Claims Act §12(2)). Thus, even if the Court were disposed to allowing movant to amend the notice of intention nunc pro tunc, this remedy would then require movant to file his claim beyond the statute of limitations.

Court of Claims Act §10(8) states
A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion 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; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.

This section would allow movant to convert his timely served notice of intention to a claim. While the full submission of the parties’ papers was beyond the statute of limitations, movant’s original motion was filed two days before the expiration of the statute of limitations. Therefore, the Court must examine the notice of intention to determine if it contains facts sufficient to constitute a claim pursuant to Court of Claims Act §11.

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. There must be sufficient detail to enable the State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, aff’d 98 AD2d 902). Pursuant to the Court of Claims Act, a claim must include the time when and place where the claim arose, the nature of the claim, items of damage or injuries sustained as well as the total sum claimed. If the original document does not include all that is essential to constitute a claim, the document is jurisdictionally defective (Grande v State of New York, 160 Misc 2d 383). The claim is subject to dismissal and “a lack of prejudice to the State is an immaterial factor” (Byrne v State of New York, 104 AD2d 782, 784, lv den 64 NY2d 607).

In Grande, claimant was involved in a motor vehicle accident when a tree fell on his motor vehicle. Claimant identified the location as traveling along Route 25A when a tree fell on his car. In another paragraph, claimant mentioned the Village of Brookville. The court inferred that the accident happened on Route 25A in Brookville. Given the lack of traveling direction, intersecting roadways or any other landmark the court found the claim to be jurisdictionally defective.

In the present case, the Court finds the notice of intention jurisdictionally defective beyond the aforementioned wrong date. The notice of intention indicates that movant’s accident was due to a “defected roadway” (movant’s Exhibit A). There is no description of the condition alleged. The notice of intention fails to list the time of day that the accident occurred. In addition, the location is listed as “Rte 347 and Myrtle Street Mt. Sinai N.Y.” In examining the location, with the Court’s current knowledge of a pothole being the defect, the Court finds the location to be inadequate. There is no indication of movant’s direction of travel, his distance from or presence in the intersection and the precise location of movant’s alleged pothole as distinguished from other potholes which may have existed. Further clouding the location, is the issue of whether the roadway is Route 347 or Route 25A as previously described. The Court is unable to convert movant’s notice of intention to a claim.

Movant’s remaining remedy is to receive permission to file a late claim pursuant to Court of Claims Act §10(6).

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; (5) whether movant has another available remedy; and (6) whether the claim appears to be meritorious. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

Movant does not recognize a delay in filing the claim, due to the service of the notice of intention upon the Attorney General’s Office. Given the defects of the notice of intention as previously outlined and the wrong date, the Court finds the notice of intention to be a nullity. The Court finds no excuse for movant’s failure to timely serve a correct notice of intention, other than law office failure.

The second, third and fourth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

Given the defects in the original notice of intention, the State had no notice of the essential facts of the claim. The State was given a wrong date, no time, no alleged defect or manner in which the claim arose and only a very general location. Clearly, the State had no opportunity to investigate as the notice of intention did not give notice to the State as to what should be investigated. The Court also finds that the State would be substantially prejudiced by allowing the claim to go forward. The defect that movant claims caused the accident, a pothole, is a condition which is transient in nature. Any investigation of the scene at this point would be worthless. Accordingly, none of these factors favor claimant.

The Court finds that movant has no other available remedy.

While the presence or absence of any one factor is not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979), the most critical factor is the apparent merit of the proposed claim. A movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and 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). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in the Court of Claims Act § 10(6) weighed in favor of the movant’s request.

The proposed claim cures some of the defects which were present in the notice of intention, namely, movant lists the date and time of the occurrence. The location states that movant was eastbound on Route 347 near its intersection with Myrtle Street. There is no indication if movant is east or west of Myrtle Street, which travel lane he is in or any measurement from a landmark to distinguish this pothole from any other pothole.

The allegations of negligence are conclusory in nature. They fail to demonstrate defendant had actual or constructive notice of the alleged condition (see Sevillia v State of New York, 91 AD2d 792).

Based on the foregoing, the Court concludes that the statutory factors do not favor movant’s application and, therefore, denies permission to file a late claim.


March 25, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on movant’s motion: Notice of Motion for Leave to Serve Late Claim dated September 20, 2004 and filed September 23, 2004; Affidavit in Support of John S. Anselmo sworn to September 16, 2004 and filed September 23, 2004; Affirmation in Support of Roberta D. Asher, Esq. with annexed Exhibits A-E dated September 20, 2004 and filed September 23, 2004; Affirmation in Opposition of Todd A. Schall, Esq. dated November 17, 2004 and filed November 22, 2004; Reply to Affirmation in Opposition of Roberta D. Asher, Esq. dated January 21, 2005 and filed January 25, 2005.
[2].Movant served the Attorney General’s Office with a “notice of claim” on December 17, 2001. The document is the equivalent of a notice of intention pursuant to the Court of Claims Act.
[3].The Court takes judicial notice that State Route 347 is an east/west road on the north shore of Long Island in Suffolk County. In an eastbound direction, Route 347 terminates west of Myrtle Street on the border of Port Jefferson and Mount Sinai. The roadway in the vicinity of Myrtle Street is known as State Route 25A.
[4].The Court notes that movant’s present counsel is not the same as counsel who served the notice of intention or the claim.