New York State Court of Claims

New York State Court of Claims

YAMAOKA v. THE STATE OF NEW YORK, #2006-016-015, Claim No. None, Motion No. M-70890


Court found it was not improper to review expert affidavit submitted on reply papers on late claim motion.

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):

Alan C. Marin
Claimant’s attorney:
Wingate, Russotti & Shapiro, LLPBy: William P. Hepner, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 6, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to reargue motion no. M-70186, which was claimant’s motion for permission to file a late claim pursuant to §10.6 of the Court of Claims Act. Such motion was granted in a Decision and Order dated September 7, 2005. In her proposed claim on such motion, Mizuko Yamaoka alleged that she was severely injured when she was struck by a car at the intersection of Meeker Avenue and Union Street in Brooklyn because of “negligent design, configuration, implementation, planning, use, and/or maintenance of the aforementioned intersection . . .” On the instant motion, defendant argues that the Court improperly considered claimant’s expert affidavit on the late claim motion, which was submitted with her reply papers. Defendant maintains that “[u]nder prevailing law, the movant is required to submit all necessary papers and arguments in her initial application, not in the reply.” Having reviewed the cases cited by defendant, none of which involved reply papers on a late claim motion, I find that claimant’s expert affidavit here was not improperly considered by the court. Such affidavit did not make new arguments, but rather was submitted in further support of claimant’s contention that her proposed claim had merit, which argument was made by claimant in her moving papers, and was disputed by defendant in its opposition papers. See Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 630 NYS2d 1003 (1st Dept 1995).

Moreover, defendant has not addressed such expert affidavit on the merits or made any argument that it was prejudiced. If so, such could be addressed by permitting defendant to submit a surreply in response to the expert affidavit.

For the foregoing reasons, having reviewed the submissions,[1] IT IS ORDERED that motion no. M-70890 be granted only to the extent that if defendant wishes to submit surreply papers in response to the expert affidavit submitted with claimant’s reply papers on motion no. M-70186, it shall do so within thirty (30) days of the filing of this Order.

March 6, 2006
New York, New York

Judge of the Court of Claims

  1. [1]The following were reviewed: defendant’s notice of motion with affirmation in support and exhibit A; claimant’s affirmation in opposition with exhibits A and B; and defendant’s affirmation in reply.