New York State Court of Claims

New York State Court of Claims

LOCKLEY v. STATE OF NEW YORK, #2006-014-510, Claim No. 110627, Motion Nos. M-70832, CM-70877


Extension of time to serve and file a late claim.
AFFIRMED 41 AD3d 439 2d Dept 6/5/07

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
S. Michael Nadel
Claimant’s attorney:
Longo & D’ApiceBy Michelle B. Kanter
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy Assistant Attorney General Gail Pierce-Siponen
Third-party defendant’s attorney:

Signature date:
July 27, 2006
New York

Official citation:

Appellate results:
AFFIRMED 41 AD3d 439 2d Dept 6/5/07
See also (multicaptioned case)


The following papers were read on the claimant’s motion extending the time to serve and file a claim, and on the defendant’s cross motion to dismiss the claim: Notice of Motion, Affirmation in Support and Exhibits annexed; Notice of Cross Motion, Affirmation in Support and in Opposition to claimant’s motion and Exhibits annexed; Reply Affirmation.

This claim arises out of an accident involving an automobile owned and operated by the claimant, and one owned by the defendant and operated by one of its employees, which occurred on December 18, 2001. By Decision and Order filed February 17, 2005, the defendant’s motion to dismiss Claim No. 107402 arising out of the same incident, was granted on the ground that the claim, which was served and filed more than 90 days after its accrual, was untimely because a timely served notice of intention had not described the manner in which the claimant was injured or how the defendant was responsible. That Order also granted the claimant’s cross motion for permission to serve and file a late claim.

In its answer to this claim, the defendant asserted as an affirmative defense that the Court lacks jurisdiction, since the claim which has been served and filed is not the same as the proposed claim with respect to which the Court granted the claimant’s application for permission to serve and file a late claim.

The circumstances of the incident, alleged to have occurred on December 18, 2001 at approximately 5:50 a.m. at the intersection of Myrtle Avenue and 82nd Street, are described as follows in this claim:
the vehicle was operated at a fast, dangerous and excessive rate of speed under the conditions then and there prevailing; in failing to be observant of the conditions of said roadway; in failing to be observant of claimant’s motor vehicle; in failing to make any or proper use of the brakes, steering or acceleration devices; in failing to keep its motor vehicle under proper control; in failing to keep a proper lookout; in following too closely; in failing to use reasonable care, caution and prudence while the operation of its motor vehicle; in causing its motor vehicle to violently strike claimant’s vehicle in the rear thereby causing it to come into contact with a third vehicle; in failing to observe traffic signs and signals at said location; and in being otherwise careless, reckless and negligent, and in violating applicable statutes, rules, regulations and/or ordinances

The proposed claim included in the claimant’s previous application alleged:
on December 18, 2001 at approximately 5:50 a.m. Andrew J. Weiss, negligently operated the aforesaid motor vehicle on 82nd Street at the intersection of Myrtle Avenue, County of Queens, New York by failing to stop at a stop sign at the corner of 82nd Street prior to entering Myrtle Avenue and then failing to observe and yield to oncoming traffic from his left side on Myrtle Avenue, including Claimant’s vehicle, so as to strike and collide with the vehicle owned and operated by Randall J. Lockley, and causing Claimant to lose control of his vehicle and then collide with a parked vehicle on Myrtle Avenue.

In addition, this claim seeks damages in the amount of $2,000,000, whereas the proposed claim (and the first filed claim, No. 107402) sought damages in the amount of $500,000.

After a preliminary conference at which the defendant’s affirmative defense was discussed, the claimant has moved to extend the time within which to serve and file the proposed claim. The defendant opposes the motion, and has cross moved to dismiss the claim.

While the defendant has opposed the motion on several grounds, ultimately the matter is addressed to the discretion of the court. In the first place, the relief sought is not barred by the expiration of the statute of limitations. “A claim is interposed on the date of its service on the defendant which may be by its inclusion as part of a late claim motion which is subsequently granted. [citations omitted] (Shimmerlik v City University of New York, 142 Misc 2d 118, 122).

While the series of lapses by counsel for the claimant — the first claim was untimely due to a defectively drafted notice of intention, the claim filed herein is different from the proposed claim, and no action was taken by counsel in response to the clearly articulated objection to the claim in the defendant’s answer until after a preliminary conference took place — could provide a basis for the exercise of discretion denying the requested relief, there has never been a question that the defendant was adequately placed on notice of the circumstances underlying the claim and the claimant’s intention to make a claim within a few months after the incident.[1]

In addition, while counsel for the defendant asserts that the circumstances have caused prejudice to the defendant, no specific prejudice has been articulated. Indeed, counsel states (in paragraph 3 of the Affirmation in Support of Cross Motion and in Opposition to Claimant’s Motion) that the “facts of the accident itself are substantially in dispute.” To the extent that divergent versions of the incident are in fact attributable to the claimant, such will likely be of some relevance at a trial.

In the end, therefore, in reliance upon the “strong public policy in favor of resolving cases on the merits” (Acosta v State of New York, 270 AD2d 164), the claimant’s motion is granted. The Order filed February 17, 2005 is amended to the extent that the time within which the claimant shall serve and file the proposed claim (in the form it appears as Exhibit C to Exhibit H in the claimant’s submission herein), is extended to 45 days from the date of the filing of this Order. Under the circumstances, the claimant shall serve and file the proposed claim, bearing Claim No. 110627, as an amended claim. The defendant’s cross motion is denied.

July 27, 2006
New York, New York

Judge of the Court of Claims



.As noted in the Court’s previous Order, the record includes correspondence dated March 19, 2002 from "Cool Risk Management Services" identifying itself as "Claims Administrator for the State of New York" (Exhibit A, annexed to the claimant's late claim application), in which it acknowledges "receipt of [the] Notice of Claim," and requests a medical package so that it could be reviewed. By way of response, under cover of a letter from claimant's counsel, dated March 25, 2002, a MV-104 Police Accident Report of the incident, prepared by the New York City Police Department, was provided (Exhibit A, annexed to the claimant's late claim application).