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