New York State Court of Claims

New York State Court of Claims

GRANGE v. THE STATE OF NEW YORK, #2006-009-030, Claim No. NONE, Motion No. M-71041


Claimant’s motion seeking permission to serve and file a late claim was denied, based primarily upon its failure to establish a meritorious claim.

Case Information

1 1.The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
BY: Thomas G. Connolly, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
May 23, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, “Proposed Notice of Intention to File Claim”[2], with Exhibits 1,2,3

Affirmation in Opposition, Affidavit of Michael Jones 4,5

Reply Affirmation 6

On February 21, 2005, a vehicle owned by claimant’s insured, Jeffrey Kimple d/b/a Jeff’s Landscaping, was involved in an accident with a New York State owned and operated snowplow on State Route 126 in the Town of Watertown, Jefferson County. According to the proposed claim, the snowplow, operated by Michael Jones, crossed a double yellow line and struck the Kimple vehicle, causing property damage in the amount of $28,594.00 (minus salvage value). By letter dated April 15, 2005, sent by certified mail, return receipt requested, claimant notified the State Department of Transportation of its subrogation claim on behalf of its insured. Claimant, however, did not file and serve a claim, or serve a Notice of Intention to File a Claim, within 90 days of this accident, as required by Court of Claims Act §§ 10 and 11. Claimant now has brought this application seeking late claim relief.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (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 claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to the issue of delay, claimant’s attorney acknowledges that a formal Notice of Intention to File a Claim was not served, but contends that the State Department of Transportation had been placed on notice of the subrogation claim by the certified mailing of April 15, 2005. Claimant’s attorney also states that he was “actively involved in possible settlement” of this claim. Other than the pursuit of a possible settlement, claimant’s attorney has offered no other explanation for the failure to serve a Notice of Intention in a timely fashion. Accordingly, the Court finds that this factor weighs against claimant.

From the moving papers, it does not appear that claimant has any alternate remedy.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Although a police accident report (see Items 1, 2, 3, Exhibit A) is generally considered insufficient, in and of itself, to establish notice of a potential claim, in this particular matter, claimant had also placed the Department of Transportation on notice of its subrogation claim, within 90 days of the accident, by its certified mailing to the department of April 15, 2005 (see Items 1, 2, 3, Exhibit B). This correspondence provided defendant with notice of the essential facts constituting the claim, and further provided defendant with the requisite opportunity to investigate the circumstances surrounding this potential claim. Accordingly, the Court finds that defendant would not be substantially prejudiced in its defense of this claim should this application be granted.

The last factor to be considered, and often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). Unlike a party that has filed a claim in a timely manner, a party seeking to serve and file a late claim has a heavier burden of demonstrating that the proposed claim appears to be meritorious (Witko v State of New York, 212 AD2d 889; Nyberg v State of New York, 154 Misc 2d 199).

As stated above, claimant seeks permission to serve and file a late claim in order to recover property damages resulting from a two vehicle collision between a vehicle owned by its insured, and a snowplow owned and operated by the State. In the companion cases of Riley v County of Broome, and Wilson v State of New York, (95 NY2d 455), the Court of Appeals clarified the standard of care which is to be applied in cases involving vehicles, such as snowplows, engaged in work on a highway. The Court of Appeals held that such vehicles are exempt from the rules of the road pursuant to Vehicle and Traffic Law § 1103(b), and liability may only be imposed upon a showing of reckless disregard for the safety of others. This reckless disregard standard requires “evidence that ‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome (Prosser and Keeton, Torts § 34, at 213 [5th ed]; see, Restatement [Second] of Torts § 500)” (Saarinen v Kerr, 84 NY2d 494, 501).

This Court has reviewed all of the papers submitted with this application, and finds no indication of any reckless conduct on the part of the snowplow operator. According to his affidavit, he was engaged in plowing operations at the time of the accident, and that it was snowing, with heavy winds blowing and drifting the snow. He indicates that his vehicle was not over the center line of the highway, but that possibly the far end of his plow extended over the line. The police accident report (see Exhibit A to Items 1,2,3) confirms that visibility was limited at the time of this accident, and the diagram of the accident attached to the report shows that both vehicles were close to the center line of the highway when they collided. These facts establish, at best, a potential cause of action based upon negligent conduct. No matter how viewed, however, such conduct cannot possibly rise to the level of intentional conduct of an unreasonable character in disregard of a known and obvious risk of probable harm, with a conscious indifference to the outcome, as required to establish recklessness (Szczerbiak v Pilat, 90 NY2d 553).

Claimant’s attorney contends that consideration of this reckless disregard standard should only be viewed as an affirmative defense, and that it should have no bearing on this Court’s decision to grant or deny late claim relief. However, since a party seeking to file a claim has the heavier burden of establishing a meritorious claim (Nyberg v State of New York, supra) and since there is no evidence whatsoever of any conduct rising to the level of recklessness, this Court finds that claimant has failed to establish a potentially meritorious cause of action.

Accordingly, after a review of all of the papers and submissions made herein, and after weighing and considering all of the factors set forth under Court of Claims Act § 10(6), it is the opinion of this Court that this application should be denied.

Therefore, it is

ORDERED, that Motion No. M-71041 is hereby DENIED.

May 23, 2006
Syracuse, New York

Judge of the Court of Claims

[2]. Since there is no provision in the Court of Claims Act authorizing this Court to permit the late service of a Notice of Intention to File a Claim, this Court has treated claimant’s “Proposed Notice of Intention to File Claim” as the proposed claim, which must be submitted in any application pursuant to Court of Claims Act § 10(6).