New York State Court of Claims

New York State Court of Claims

KENYON v. THE STATE OF NEW YORK, #2006-015-120, Claim No. NONE, Motion No. M-71485


Late claim relief granted where claimant alleged State was negligent in the maintenance of a portion of a bridge which had collapsed and the requisite criteria for late claim relief was established.

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):

Claimant’s attorney:
The DeLorenzo Law FirmBy: Paul E. DeLorenzo, Esquire and Scott Lieberman, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 13, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Following the dismissal of the previously filed claim (Claim No. 111439) for failure to include the total sum claimed[1] movant makes the instant motion for leave to file and serve a late claim pursuant to Court of Claims Act § 10 (6). For the reasons which follow the late claim application is granted. The proposed claim (Exhibit E) alleges the following at paragraph 4:
The claim arose in the following manner: that on or about the 27th day of July, 2005, the claimant, Stacey L. Kenyon was traveling northbound on the ramp of I787 of the Private Parker F. Dunn Memorial Bridge in or about the City of Albany, County of Albany and State of New York. As she proceeded on the ramp to the Empire State Plaza, she encountered a portion of the bridge that had collapsed, causing her vehicle to drop approximately two (2) feet to the other side of the bridge. By virtue of the carelessness and negligence of the defendants, their agents, servants and/or employees, particularly the defendants' failure to maintain the roadway and said bridge in a reasonably safe condition, the defendants breached their duty owed and that such breach was a proximate cause of claimant's injuries hereinafter described.

The proposed claim goes on to assert that the claimant (i) sustained permanent physical and emotional injuries as a result of the incident (ii) received medical care and treatment for her injuries and will require future such care and treatment and (iii) has been unable to perform her normal activities.

The defendant has opposed the motion on the grounds that movant failed to provide a reasonable excuse for the delay in filing the claim and that claimant's submissions on the motion do not support a finding that the proposed claim is meritorious. Defense counsel submitted an affidavit of Richard Marchione, P.E., Director of the Structural Engineering Services Bureau of the New York State Department of Transportation (DOT) Office of Structures. Marchione avers in his affidavit that "appropriate maintenance and inspection took place and could not have otherwise prevented this unanticipated failure." He further alleges that rust build-up and dishing of the masonry plates created conditions which were only visible by laboratory inspection and would not have been detected during standard visible inspections conducted by DOT every two years.

Movant in reply submitted the affidavits of Richard H. Green, a professional (Civil) engineer, and Lawrence M. Levine, P.E. Paragraphs numbered "1" through"6" of Levine's affidavit set forth the affiant's educational background and professional engineering experience. Paragraphs numbered "7" through"22" repeat verbatim the allegations found in paragraphs "5" through"20" of Green's affidavit rendering the two affidavits virtually indistinguishable. Defense counsel by letter dated July 11, 2006 opposed the movant's reply citing to an earlier decision of the court (viz., Bohl v State of New York, Ct Cl, October 14, 2005 [Claim No. None, Motion No. M-70515, UID # 2005-015-045] Collins, J., unreported[2]) which held that the submission of medical reports or documentary evidence of defendant's liability in reply to an opposing affidavit should not be considered.

By letter dated July 14, 2006 movant's counsel attempted to distinguish the instant case from Bohl (supra). Support for the instant motion consisted of an attorney's affidavit, a copy of the previously dismissed claim, a copy of an October 20, 2005 investigation report prepared by NYSDOT, copies of NYSDOT news releases dated July 29, 2005 and August 25, 2005, movant's affidavit and copies of uncertified medical records.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: “whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy".

The motion filed on March 29, 2006 is timely in that a personal injury claim arising from the existence of a hazardous condition caused by the alleged negligence of the State is governed by the three year Statute of Limitations set forth in CPLR § 214 (5).

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

Movant's counsel alleges, in reference to the previously dismissed claim, that the delay in filing the claim was "inadvertent in that most claims in New York State, pursuant to the CPLR, are no longer necessitating damage amounts (sic)". It is settled, however, that ignorance of the law is not an acceptable excuse (Matter of E.K. v State of New York, 235 AD2d 540; Sevillia v State of New York, 91 AD2d 792). No other excuse has been offered and this factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. In his affidavit in support of the motion movant's attorney alleges that the jurisdictionally defective claim was timely filed, that the bridge collapse was the focus of extensive media coverage and that the State conducted an investigation and prepared a structural forensic investigation report issued on October 20, 2005 (Exhibit B).

The State concedes that it received timely notification of the essential elements of the claim and was afforded an opportunity to investigate the circumstances underlying the incident. Therefore, the State was not prejudiced by the movants' delay in filing and serving the claim and the factors of notice, opportunity to investigate and lack of prejudice favor granting the motion (Matter of Lockwood v State of New York, 267 AD2d 832, 833).

In Bohl v State of New York, (Ct Cl, October 14, 2005 [Claim No. None, Motion No. M-70515, UID # 2005-015-045] Collins, J. unreported, supra), the Court held that where a movant's purported injuries arise out of the negligent use or operation of a motor vehicle movant must demonstrate that he [or she] has suffered a serious injury as defined in Insurance Law § 5102 (d). However, the instant case is distinguishable from Bohl v State of New York because the movant's injuries did not arise "out of negligence in the use or operation of a motor vehicle in this state" (CPLR 3016 [g]). The negligence alleged here is that the defendant failed to properly maintain the subject portion of the Dunn Memorial Bridge unlike the situation in Bohl (supra) where claimant's injuries allegedly resulted from the negligent operation of a motor vehicle by a State employee. Under the present circumstances movant need not offer the affidavit of a medical expert to prove that she sustained a serious injury as defined in Insurance Law § 5102 (d). Alternatively, movant's submissions, viewed liberally, have sufficiently established for purposes of the instant motion that the movant sustained a serious injury.

Moreover, although an engineer's affidavit on a late claim application may be required in certain instances (see Nyberg v State of New York, 154 Misc 2d 199) such is not the case where the alleged wrongdoing of the State can be assessed based upon common knowledge and experience (see, Matter of Caracci v State of New York, 178 AD2d 876). As Judge Corbett observed in Cartwright v State of New York, (Ct Cl, December 10, 2002 [Claim No. None, Motion No. M-64457, UID # 2002-005-549] unreported), "[c]laimant does not have to prove merit, but merely the appearance of meritoriousness" In this case, as in Cartwright, (supra) the divergent views of competing experts should be subject to cross-examination at trial and subsequently resolved by the Court. On a late claim application the Court must only be satisfied that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid claim exists (see Rosenhack v State of New York, 112 Misc 2d 967). In the Court's view movant has met that minimal burden.

As to the final factor it does not appear that movant has any other remedy available under the circumstances alleged in the proposed claim.

Weighing all of the factors this motion for leave to file a late claim is granted.

Movant shall file a verified claim with the Clerk of the Court and serve a copy of the claim upon the Attorney General within thirty (30) days from the date of filing of this decision and order. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court with particular reference to Court of Claims Act § § 10, 11 and 11-a.

September 13, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 28, 2006;
  2. Affidavit of Paul E. DeLorenzo sworn to March 27, 2006 with exhibits;
  3. Affidavit of Stacey L. Kenyon sworn to March 17, 2006 with exhibits;
  4. Affirmation of Glenn C. King dated April 26, 2006;
  5. Affidavit of Richard Marchione, P.E. sworn to April 26, 2006;
  6. Affidavit of Richard H. Green sworn to June 27, 2006 with exhibit;
  7. Affidavit of Lawrence M. Levine sworn to June 27, 2006 with exhibit;
  8. Reply Affirmation of Scott Lieberman dated June 27, 2006 with exhibit;
  9. Letter dated July 11, 2006 from Glenn C. King;
  10. Letter dated July 14, 2006 from Scott Lieberman.

[1].See decision and order filed March 2, 2006.
[2].Unreported decisions from the Court of Claims are available via the internet at