New York State Court of Claims

New York State Court of Claims

ONE BEACON INSURANCE COMPANY v. THE STATE OF NEW YORK, #2005-033-150, Claim No. None, Motion No. M-70539


Synopsis



Case Information

UID:
2005-033-150
Claimant(s):
ONE BEACON INSURANCE COMPANY a/s/o PEPPINA E. TURCK
Claimant short name:
ONE BEACON INSURANCE COMPANY
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-70539
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Wenig & WenigBy: Alan Wenig, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney General
Third-party defendant’s attorney:

Signature date:
December 16, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion for a late claim[1] for property damages by One Beacon Insurance Co. as subrogor of Peppina E. Turck (hereinafter “movant”) as the result of a motor vehicle collision while the motor vehicle was in the care of the State of New York (hereinafter “defendant”). The incident took place on July 8, 2004, at the University Hospital at Stony Brook, New York, (hereinafter “defendant”).


On July 8, 2004, movant’s subrogee used the valet parking service provided at defendant’s hospital. While defendant’s employee was parking the vehicle, he struck a pole and another vehicle. 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 does not attempt to make an excuse for the delay in filing. Therefore, this factor does not favor movant.

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.

As argued by movant, defendant had notice of the underlying facts of the claim when the accident occurred, as well as an opportunity to investigate the matter. The Court finds no substantial prejudice to defendant.

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, based on movant’s papers and exhibits finds there is an appearance of merit.

Defendant interposes no opposition to the motion.

In conclusion, the majority of factors favor movant and the application to file a late claim is granted. Movant shall serve and file the proposed claim, pursuant to Court of Claims Act §§10, 11 and 11-a within forty-five (45) days of the filing date of this decision and order.


December 16, 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 August 1, 2005 and filed August 3, 2005; Affidavit of Alan Wenig, Esq. with annexed Exhibits A-E sworn to August 1, 2005 and filed August 3, 2005.