New York State Court of Claims

New York State Court of Claims

HARRINGTON v. THE STATE OF NEW YORK, #2006-010-014, Claim No. 110551, Motion Nos. M-71462, M-71571


Synopsis


Defendant’s motion to dismiss is granted and claimant’s motion to file a late claim is denied.

Case Information

UID:
2006-010-014
Claimant(s):
MICHAEL HARRINGTON
1 1.The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
HARRINGTON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110551
Motion number(s):
M-71462, M-71571
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
MICHAEL HARRINGTONPro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 6, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the Court on defendant’s unopposed motion (M-71571) to dismiss Claim No. 110551:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits


The following papers numbered 1-2 were read and considered by the Court on claimant’s motion (M-71462) for leave to serve and file a late claim:
Notice of Motion, Supporting “Affirmation” and Exhibits......................................1

Affirmation in Opposition and Exhibits...................................................................2
Claim No. 110551
On or about February 24, 2005, claimant served defendant with Claim No. 110551 (Defendant’s Ex. A). The claim alleged that on June 7, 2004 at 7:00 a.m., claimant was driving northbound on the Hutchinson River Parkway and proceeded off the Parkway at Exit 13, where claimant’s vehicle was caused to leave the roadway allegedly due to inadequate lighting, a “steep incline/sharp turn” along the exit ramp and “an enormous pothole.” Claimant’s car allegedly went over the curb and onto the grass and dirt alongside the exit ramp and suffered extensive damage in the amount of $3,159.00. The claim further stated that a Notice of Intention was served on August 31, 2004.

On May 12, 2005, claimant served an Amended Claim upon defendant alleging damages in the amount of $4,035.96 (Defendant’s Ex. B). On June 21, 2005, defendant served an Answer raising the affirmative defense that the Court lacks jurisdiction over the claim due to claimant’s failure to timely serve either a Claim or a Notice of Intention to File a Claim within 90 days of accrual of the claim (Defendant’s Ex. C, ¶ 12).
Claimant’s Motion for Leave to Serve and File a Late Claim
After a Court conference, claimant brought a motion seeking leave to serve and file a late claim. The Proposed Claim was in the same form as the Amended Claim (Claimant’s Ex. B). In support of the application, claimant includes a letter dated August, 31, 2004, addressed to the Attorney General setting forth the allegations of the claim and damages in the amount of $3,159.00 (Claimant’s Ex. A). The first paragraph of the letter states:
“I would like to request a form in order to file a Notice of Claim and obtain a Claim Number. However, if this letter is sufficient to serve as a Notice of Claim, I will state the reasons for the claim.”
(id.). Claimant’s Supporting Affirmation states:
“I mailed a Notice of Intention to File a Claim (attached as Exhibit “A”) to Elliot [sic] Spitzer, the Attorney General, on August 31, 2004. Elyse J. Angelico, the Assistant District Attorney, stated that she did not have a copy of that letter and, therefore, she was going to file a Motion to dismiss my case, alleging that it was not filed in a timely manner. It is not my fault that the letter I mailed to Elliot [sic] Spitzer never made it to Elyse J. Angelico. Since the defendant is making a Motion to dismiss my case, alleging that it was not filed in a timely manner, I’m making this instant Motion for permission to file a late claim.”

(id. at ¶ 4). Claimant does not submit any other documentation or proof in support of his application.

In opposition to the late claim application, defendant submits an affidavit of the Clerk of the Claims Bureau in the New York City office of the Attorney General who performed a thorough search of its records and determined that the Attorney General did not receive a Notice of Intention regarding this matter.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the above six factors. Claimant offers no excuse for the delay in filing his claim. Most significant is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). “A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action” (Witko v State of New York, 212 AD2d 889, 891). Notably, the proposed claim fails to allege with any specificity how defendant was negligent and how such alleged negligence was a proximate cause of the alleged damage. Claimant’s unsupported conclusory allegations are insufficient to establish the appearance of merit (see Klingler v State of New York, 213 AD2d 378 [claimant’s unsupported opinion does not suffice to establish merit of her claim]).

Additionally, the State would be substantially prejudiced by a granting of claimant’s application more than eight months after the date of the accident (see Maurantonio v State of New York, 266 AD2d 290 [eight month delay unreasonable]; Nicometti v State of New York, 144 AD2d 1036 [delay was inexcusable and prejudiced the State because they had not investigated the accident]). Indeed, claimant presents no photographs, witness’ statements, an accident report or any other documentation to corroborate his self-serving allegations regarding his alleged accident (see Matter of Gallagher v State of New York, 236 AD2d 400 [nine month delay caused State substantial prejudice and claimant did not establish appearance of merit merely by submitting a photograph of the accident site]; Klingler v State of New York, supra [claimants’ unsupported opinion does not suffice to establish merit of their claim]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness’ statement]). Moreover, claimant has another available remedy via a claim against his insurance company.

Accordingly, upon weighing all the factors, claimant’s motion for leave to file and serve a late claim is DENIED (see Qing Liu v City Univ. of N.Y., 262 AD2d 473).
Defendant’s Unopposed Motion to Dismiss
The Court of Claims Act §10(3) provides that a claim for damage to property “shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.” The claim accrued on June 7, 2004; neither a claim nor a notice of intention were served within ninety days of accrual of the claim.

Pursuant to the Court of Claims Act § 11(a)(1) and (b), a notice of intention must be sent by certified mail, return receipt requested and that the “claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court.” The letter claimant alleges he sent to the Office of the Attorney General on August 31, 2004 was not a notice of intention, as it was unverified, does not appear to have been sent by certified mail, return receipt requested, and does not actually give notice that a claim against the State will be forthcoming. Additionally, the New York State Department of Transportation is not a proper party defendant.

The requirements of Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance (see Finnerty v New York State Thruway Auth., 75 NY2d 721; Matter of Welch v State of New York, 71 AD2d 494). Accordingly, the claim warrants dismissal pursuant to CPLR 3211(a)(2) and (a)(8) (see, Gatz v State of New York 283 AD2d 607; Hodge v State of New York, 213 AD2d 766).

Defendant’s motion to dismiss Claim No. 110551 is GRANTED.

June 6, 2006
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims