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
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.