New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK AND NEW YORK STATE THRUWAY AUTHORITY, #2006-010-046, Claim No. NONE, Motion No. M-72217


Synopsis


Claimant’s late claim application denied. Claim alleged negligent maintenance of roadway - claimant did not establish timely notice to defendant, no support for alleged negligent design.

Case Information

UID:
2006-010-046
Claimant(s):
JUAN V. MARTINEZ AND GENOVEVA MARTINEZ
Claimant short name:
MARTINEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK AND NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72217
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
RAPHAELSON LAW FIRM, P.C.By: Howard A. Raphaelson, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 8, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-3 were read and considered by the Court on claimants’ motion for leave to serve and file a late claim:
Notice of Motion, Attorney’s Supporting Affirmation, Supporting Affidavit and Exhibits......................................................................................................................1

Amended Notice of Motion, Attorney’s Supporting Affirmation, Supporting Affidavit and Exhibits..............................................................................................2

Attorney’s Affirmation in Opposition and Exhibits................................................3

The proposed claim alleges that, on May 10, 2006, at approximately 4:00 p.m., Juan V. Martinez was a passenger in a car he owned which was being driven by his son. The car was traveling southbound on I-87 near mile marker 62 when the car went out of control and left the roadway, crossing the shoulder and overturning within an area of trees. While the proposed claim fails to state that the driver’s side rear tire suffered a blowout which caused the car to go out of control, this information is contained in the supporting affirmation submitted with the proposed claim (Affirmation in Support, ¶3). The proposed claim alleges that defendants are responsible for the accident due to their negligent maintenance of the roadway and their failure to install barricades, guiderails or other protectors to prevent motorists from leaving the roadway. Claimants seek damages for personal injuries and damages to the car. The proposed claim also seeks damages on behalf of claimant’s wife, Genoveva Martinez, for loss of services.

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 six factors. Defendants do not dispute claimants’ excuse for the delay in commencing an action due to claimant’s incapacity following the accident (Defendants’ Affirmation, ¶7). However, that is but one factor to be considered. The most significant factor 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).

Claimants do not submit any support for their allegation of negligent design and the failure to erect roadway barriers or guiderails (see Klingler v State of New York, 213 AD2d 378 [claimant’s unsupported opinion did not establish an appearance of merit of her claim that her accident might not have occurred if the State had installed a traffic light at the intersection]; Nyberg v State of New York, 154 Misc 2d 199, supra [court rejected lay opinion of negligent roadway design and failure to erect a median barrier]). Moreover, in opposition to claimants’ application, defendants submit the affidavit of George Gaborow, P.E., Claims Engineer for the New York State Thruway Authority, indicating that the situs of the accident did not warrant guiderails according to the established standards of the New York State Highway Design Manual, Chapter 10 (Defendants’ Ex. 2). Additionally, Gaborow noted a very limited accident history over the three years prior to claimants’ accident, without any prior similar accidents noted. The Court finds that claimants have failed to establish the appearance of merit of the claim against defendants and notes that claimants may have another available remedy regarding the tire blowout as against its manufacturer.

It is also noted that a police accident report does not establish notice to the State or the Thruway Authority (see Rizzo v State of New York, 2 Misc 3d 829 [accident report does not alert state of a potential claim where no mention of potential negligence of state was a cause of accident]). Here, the accident report made no mention of any defective roadway condition as a potential cause of the accident; rather it listed the cause of the accident as “BACK DRIVER’S SIDE TIRE FAILED” (Claimants’ Ex. A; see Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413 [incident report made no mention of allegedly defective condition and did not connect claimant’s injuries to any negligence of defendant; therefore defendant had no notice of essential facts constituting claim]). Thus, claimants did not establish that defendants had timely notice to investigate the cause of the accident.

Accordingly, upon consideration of all the factors, claimants’ application is DENIED.


January 8, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims