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
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
Cl, October 14, 2005 [Claim No. None, Motion No. M-70515, UID # 2005-015-045]
Collins, J., unreported
) 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
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
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.