New York State Court of Claims

New York State Court of Claims

CARPINO v. THE STATE OF NEW YORK, #2005-033-141, Claim No. None, Motion No. M-70194


Synopsis



Case Information

UID:
2005-033-141
Claimant(s):
SUSAN CARPINO
Claimant short name:
CARPINO
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-70194
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Tierney & Tierney, Esqs.By: Stephen A. Ruland, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 13, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion by Susan Carpino (hereinafter “movant”) for permission to file a late claim pursuant to Court of Claims Act §10(6)[1], relating to the alleged negligence of the State of New York on January 12, 2003, on Route 25 in Ridge, New York.

The alleged act of negligence is defendant’s negligent construction, maintenance and failure to warn of a dangerous and defective condition. The condition referred to by movant is an uneven area of a shoulder in the vicinity of a drain as the result of construction at the location. Movant was proceeding westbound on Route 25 at approximately 3:00 p.m. Movant moved off the travel portion of the roadway and onto the shoulder to allow a car behind her to pass. When movant drove onto the shoulder she went into a large ditch which caused her to bounce around the inside of the vehicle. Defendant opposes the motion.

In order to determine whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act §10(6):

(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 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 attributes the delay in filing a claim to mistakenly identifying the accident situs. Movant served a notice of intention and later a claim (Claim No. 109532) upon defendant identifying the location as 100 feet west of Crescent Drive. Movant now avers that the accident took place 100 feet west of Pheasant View. According to defendant’s opposition papers, the two locations are approximately a quarter of a mile apart.

Movant’s delay in timely filing a claim or serving a notice of intention is movant’s mistaken identification of the location and counsel’s failure to properly investigate the location. Movant does not present the Court with a reasonable excuse.

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.

The allegations of movant indicate that the State created the condition at the accident site and thus, had actual notice of the defect. Defendant had no opportunity to investigate the incident in a timely manner. The condition complained of is transitory in nature. It is unknown how long the condition existed or if it still exists.

The Court finds that any prejudice to the State is minimal.

Movant may have alternative remedies. It is unknown if State employees created the condition or if an outside construction company performed the work or if the work was done by State employees.

While the presence or absence of any one of the six factors 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 always is the apparent merit of the proposed claim. The 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 Court of Claims Act §10(6) weighed in favor of the movant’s request. The Court is satisfied that the claim exhibits the appearance of merit.

In conclusion, the majority of the factors favor movant. The Court grants movant’s application to file a late claim. Movant shall serve and file the proposed claim within forty-five (45) days of the filing of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act.


September 13, 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 dated May 19, 2005 and filed May 23, 2005; Affirmation of Stephen A. Ruland, Esq. with annexed Exhibits 1-16 dated May 19, 2005 and filed May 23, 2005; Affidavit of Merit of Susan Carpino sworn to May 19, 2005 and filed May 23, 2005; Affirmation in Opposition of Todd A. Schall, Esq. with annexed Exhibits A-F dated July 8, 2005 and filed July 11, 2005; Reply Affirmation of Stephen A. Ruland, Esq. dated July 18, 2005 and filed July 21, 2005.