New York State Court of Claims

New York State Court of Claims

FLAHERTY v. STATE OF NEW YORK, #2006-014-503, Claim No. 110946, Motion Nos. M-70305, CM-70351


Synopsis


Nature of claim was insufficiently stated in the notice of intention, so that the claim is untimely; application for permission to file a late claim is granted.

Case Information

UID:
2006-014-503
Claimant(s):
MAUREEN FLAHERTY
1 1.The caption has been amended to delete named defendants over whom the Court of Claims does not have jurisdiction.
Claimant short name:
FLAHERTY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to delete named defendants over whom the Court of Claims does not have jurisdiction.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110946
Motion number(s):
M-70305
Cross-motion number(s):
CM-70351
Judge:
S. MICHAEL NADEL
Claimant’s attorney:
Arnold L. Kert
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 3, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on defendant’s motion to dismiss the claim, and on claimant’s cross-motion for permission to file a late claim: Notice of Motion, Affirmation in Support and Exhibit; Notice of Cross-Motion, “Verified Complaint” and Exhibits; Affirmation in Opposition; Reply Affirmation and Exhibit.

In this pre-answer motion defendant seeks to dismiss the claim, which is for personal injury resulting from an incident which occurred on May 24, 2004, as untimely. The claimant opposes defendant’s application and cross-moves seeking permission to file a late claim. The basis for the defendant’s motion is that the notice of intention, which was timely served, did not comply with the requirements of section 11(b) of the Court of Claims Act, and did not, therefore, serve to extend the time period within which to serve and file a claim. Specifically, defendant contends that the notice of intention did not adequately describe the nature of the claim.

The notice of intention states that the nature of the claim is one for “personal injuries arising out of a negligent condition on the FDR Drive, in the southbound lanes in the vicinity of the 14th Street.” Although the notice of intention does allege that an “incident occurred on May 24, 2004, at approximately 1:00 a.m.” it does not contain any other information concerning what is alleged to have happened. Indeed, by any reading of the notice of intention in its entirety, it does not allege that anything happened.

The requirements of section 11(b) of the Court of Claims Act, that a claim or notice of intention must “state the time when and place where such claim arose [and] the nature of same,” have consistently been applied in the context of their purpose, which is to enable the State to investigate the claim promptly and to ascertain its own liability. The Court of Appeals has adopted that standard as the “guiding principle informing section 11(b)” (Lepkowski v State of New York, 1 NY3d 201, 207).

By the foregoing standard, a notice of intention which simply alleges the existence of a “negligent condition” at a particular time and place, without providing any information as to what occurred, does not satisfy the requirements of section 11(b); the service of this notice of intention, therefore, did not extend the time within which to serve and file a claim. The claim is untimely.

Claimant’s cross-motion, seeking permission to file a late claim, was filed within the relevant statute of limitation so the Court has jurisdiction to grant relief under § 10 (6), and has considered the factors listed therein (see Bay Terrace Cooperative Section IV, Inc. v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979, 981).

The delay in filing a claim, resulting from an insufficient notice of intention, is not excusable. Nothing in the record would indicate that the defendant had notice of the circumstances underlying the claim until a year after the incident, when the claim was filed.

It appears from the filed claim, as well as the proposed claim, that the nature of the claim is that the claimant was thrown from a motorcycle on which she was riding as a passenger, allegedly due to the unsafe and dangerous condition of the roadway which was under construction at the time by the defendant.

While the insufficiency of the notice of intention could support the defendant’s contention that the notice of intention was “so devoid of essential facts of the accident that [defendant] has been prevented from conducting a proper investigation,” there is nothing in the record which suggests that, since the time the claim was served, the defendant has been unable to investigate, or whether the delay has resulted in any prejudice to the defendant (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024).

Both the filed claim and the proposed claim include sufficient detail to enable the Court, upon the entire submission, to conclude that the claim appears sufficiently meritorious for these purposes.

The defendant suggests that the claimant may have an alternative remedy against the driver of the motorcycle.

Upon consideration of the factors set forth in subdivision 6 of section 10 of the Court of Claims Act, the circumstances warrant exercise of the Court’s discretion to grant the claimant’s application.

In accordance with the foregoing, it is

ORDERED, that the claimant’s application for permission to file a late claim is granted.

Upon the authority of Jomarron v State of New York, 23 AD3d 527, the defendant’s motion is granted only to the extent that the claim which was filed on May 31, 2005 is deemed filed as of the date of this Order; the Chief Clerk is directed to assign the claim a new number, and to inform the parties. The defendant shall serve and file an answer within 40 days of the date of the filing of this Order.


April 3, 2006
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims