New York State Court of Claims

New York State Court of Claims

BURLINGAME v. STATE OF NEW YORK, #2006-018-499, Claim No. 110095, Motion No. M-70073


Permission to file a late claim is granted. Permission to intervene is denied.

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:
(Dennis Burlingame)
By: Kevin P. Kuehner, Esquire

For Movant:
Corporation Counsel
(City of Syracuse)
By: Nancy J. Larson, Esquire Assistant Corporation Counsel
Defendant's attorney:
Attorney General of the State of New York
By: Maureen A. MacPherson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 17, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a motion seeking permission to file a late claim pursuant to Court of

Claims Act § 10(6), and also requests permission to intervene in Claim No. 110095, Burlingame v State of New York. Defendant opposes the requested relief.

By way of background, on October 21, 2004, this Court granted Claimant, Dennis Burlingame, permission to file a late claim asserting causes of action for negligence and malpractice which allegedly resulted from his treatment at the State University of New York Upstate Medical University (hereinafter University Hospital) beginning in December 2001. Claimant Burlingame's claim arose after he was injured in an automobile accident apparently during the course of his employment as a police officer for the City of Syracuse on December 27, 2001. He broke his femur in the car accident and Dr. Dwight Webster of University Hospital performed surgery upon Claimant that day which Claimant Burlingame asserts was done incorrectly. His claim was filed with the Clerk's office on November 17, 2004 (Claim No. 110095).

Movant, pursuant to its obligation under General Municipal Law § 207-c has allegedly paid Claimant Burlingame's medical expenses, wages, and benefits as a result of his on-duty injuries resulting from the car accident. Movant now seeks to interpose a late claim against the State asserting a cause of action under General Municipal Law § 207-c(6) which provides:

Notwithstanding any provision of law to the contrary thereto

contained herein or elsewhere, a cause of action shall accrue

to the municipality for reimbursement in such sum or sums

actually paid as salary or wages and or for medical treatment
and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained

or sickness caused by such third party.

Movant also seeks to intervene pursuant to CPLR 1013 in Claim No. 110095 on the ground that its claim and the Burlingame claim have common questions of law or fact. Movant asserts that allowing it to intervene will not duly delay the determination in the action or prejudice the substantial rights of any party.
Late Claim Application
A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the Court, to file a claim which complies with § 11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR (Court of Claims Act § 10[6]).

Defendant argues that this motion is untimely because the alleged malpractice occurred during Movant's first surgery on December 27, 2001. Defendant maintains that, although Claimant Burlingame continually treated with Dr. Webster for this same condition until at least December 27, 2002, Movant's cause of action is one for reimbursement pursuant to statute, not a malpractice action, and, therefore, cannot benefit from the continuous treatment doctrine. It is Defendant's position that Movant's claim is subject to a three-year statute of limitations for "an action to recover upon a liability....imposed by statute," which would have accrued on December 27, 2001, making this motion untimely (CPLR 214[2]).

In, City of Buffalo v Maggio, 21 NY2d 1017, 1018, the Court of Appeals construed General Municipal Law, now § 207-c(6), as giving a municipality a direct remedy against the person liable to the employee in negligence but not a new liability. The Court of Appeals reasoned that since the municipality's right to bring an action under the statute is dependent on the employee's cause of action, the statute of limitations applicable to the employee's cause of action is also applicable to the municipality's claim. In other words, the municipality's action under § 207-c(6) is derivative of the employee's cause of action (id.; Village of Suffern v Baels 215 AD2d 751).

Accordingly, the Court finds that Movant's motion to file a late claim is timely as it was filed within two and one-half years[1] of the date Claimant Burlingame last saw Dr. Webster for a regularly scheduled, follow-up appointment after his first surgery (Court of Claims Act §10[6]; CPLR 214-a). The continuous treatment doctrine similarly serves to toll the statute of limitations for the Movant's proposed claim as derivative of Claimant Burlingame's claim (see Dolce v Powalski, 13 AD3d 1200 [4th Dept]; Cappelluti v Sckolnick, 207 AD2d 763, 764 [2d Dept]; but see Dunning v Brisson, 21 AD3d 271, 272 [1st Dept]; Wojnarowski v Cherry, 184 AD2d 353, 354 [2d Dept]).

Turning to the substantive analysis, to determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10(6), and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

Movant asserts as an excuse for its failure to timely serve a notice of intention or to file and serve a claim in accordance with Court of Claims Act § 10 that it did not learn that Claimant Burlingame was seeking to assert a late claim for malpractice against defendant until November 2004, and did not actually receive a copy of the claim until January 10, 2005. Even if the Court were to accept this time frame as an acceptable excuse, Movant did not file its motion for another four months. The Court does not find that this factor weighs in favor of granting the motion. Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. Movant asserts that the State had notice of the essential facts relating to this claim because of Claimant Burlingame's prior late claim application and filed claim. Defendant argues that if this claim is permitted it will now need to defend the case by apportioning the Claimant's injuries to the vehicle accident which resulted in his broken femur. It is Defendant's position that until Movant's motion was filed, it had no notice or opportunity to investigate the circumstances of the accident and, as a result, it will suffer prejudice due to the extensive passage of time (4 years). The Court finds that these factors weigh in favor of Movant's application, as in a derivative cause of action, the focus will be on whether or not Defendant committed malpractice - not on the accident. Yet, to the extent that Defendant requires any information regarding the precipitating accident, for such purposes as establishing the liability as a successive tortfeasor of the driver, both Movant and Claimant Burlingame have already filed separate lawsuits against the driver of the other vehicle involved in the accident. In both cases, some discovery will have likely been conducted which will assist Defendant in any necessary investigation minimizing any prejudice.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious. (see Nyberg v State of New York, 154 Misc 2d 199). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11). The proposed claim seeks reimbursement pursuant to General Municipal Law § 207-c(6) for monies expended paying Claimant Burlingame's full salary and medical expenses. The Court agrees with Defendant, that this is not the usual scenario where a municipality seeks reimbursement from a tortfeasor under the statute, since the alleged negligence here is once removed from the on-duty vehicular accident which warranted payments under the statute (General Municipal Law § 207-c). Nonetheless, to the extent that a component of Claimant Burlingame's injuries are attributable to the malpractice of Defendant State and the municipality has paid wages and medical expenses, it appears to be entitled to seek reimbursement from the imputable tortfeasor for expenses and salary actually paid (not future expenses). The Court of Appeals has held that this cause of action is derivative of the employee's cause of action (see City of Buffalo, 21 NY2d at 1018). Thus, to the extent that Claimant Burlingame's claim has some appearance of merit, Movant's claim, derivatively, has some.

Defendant makes another argument that this potential claim lacks merit in that to allow Movant's claim is to effectively preclude Defendant's entitlement to a setoff, in accordance with CPLR 4545. CPLR 4545 permits a reduction in the amount of any damages awarded if the Court finds that any such portion of damages has been or will be replaced or indemnified from any collateral source such as insurance, social security, workers' compensation or employee benefit programs. Defendant argues that, since in every other judicial department, other than the Fourth Department, an insurance company cannot sue in subrogation for reimbursement for damages otherwise subject to collateral offset pursuant to CPLR 4545, Movant should be unable to assert its claim as well. However, the Fourth Department, whose decisions are binding upon this Court in this action, has permitted insurance providers to intervene in a plaintiff's tort action pursuant to its rights of subrogation to pursue reimbursement from the tortfeasor for the amounts expended on behalf of plaintiff's medical care (see Kaczmarski v Suddaby, 9 AD3d 847; Omiatek v Marine Midland Bank, N.A., 9 AD3d 831). The statute also specifically excludes a setoff for such collateral sources entitled by law to liens against any recovery of the plaintiff (CPLR 4545). Thus, payments made under workers' compensation for lost wages, etc., would not be subject to a setoff if a statutory lien was authorized (see Panattoni v Inducon Park Assoc., Inc. 247 AD2d 823; Jenkins v Meredith Ave. Assoc. 238 AD2d 477, 479; Nitzke v Loveland, 188 AD2d 1058).

Although, General Municipal Law § 207-c(6) does not give rise to a statutory lien against the recovery of a plaintiff or claimant, thus not explicitly precluding the application of CPLR 4545, it does provide the municipality with a separate right of action to recoup its expenditures. It would be incongruous to find that CPLR 4545 precludes the right of action provided by General Municipal Law § 207-c(6). CPLR 4545, a statute enacted in derogation of the common law, must be strictly construed in the narrowest sense (see Oden v Chemung Co. Indus. Dev. Agency, 87 NY2d 81, 86). In the opinion of this Court, CPLR 4545 would permit a setoff of the amounts paid to Claimant police officer as wages or medical expenses unless the municipality seeks, by its own initiative, to bring a cause of action for reimbursement of the sums it expended. To this end, both statutory directives would be effective, furthering the legislative intent: Claimant would not receive a double recovery, which CPLR 4545 was designed to prevent, and the municipality would be entitled to bring an action for reimbursement to the extent it takes the initiative to enforce its rights under General Municipal Law § 207-c(6). Defendant, if found responsible for the Claimant's injuries and therefore the municipality's expenditures under General Municipal Law §207-c, would not be paying out any more than the amount of damages its alleged negligence has caused. Movant has established the potential merit of its proposed claim .

The final factor to be considered is whether Movant has any other available remedy. As Defendant points out and Movant acknowledges, it has brought another action against the other driver of the vehicle involved in the accident with Claimant Burlingame. As potentially successive tortfeasors, the driver of the other vehicle could be held responsible for both the injuries caused by the car accident as well as any subsequent medical malpractice. This factor weighs against granting Movant's application.

Upon balancing all of the factors in Court of Claims Act § 10(6), this Court GRANTS the motion. Movant is directed to file and serve the proposed claim for reimbursement of sums actually paid pursuant to General Municipal Law § 207-c(6), properly signed and verified, and to pay the required fee or submit the appropriate application in accordance with Court of Claims Act 11-a within 45 days of the date this Decision and Order is filed with the Clerk of this Court. Filing and service should be in accordance with all applicable statutory requirements and Court rules. The proposed claim must be amended to reflect the City of Syracuse only as Claimant.

Motion for Permission to Intervene

Movant also seeks permission to intervene in Claimant Burlingame's claim against the State of New York (Claim No. 110095) for reimbursement of monies expended to pay Claimant Burlingame's wages and medical expenses, to the extent his injuries were caused by the State's negligence (CPLR 1013). So as not to incur any delay at this point with Claimant Burlingame's claim, the Court has granted Movant's request for permission to file a late claim, and denies this portion of Movant's motion as moot.

January 17, 2006
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion...................................................................................................1

Affidavit of Lt. Judy L. Culeton, sworn to April 28, 2005, in support.................2

Affidavit of Clarice Keating, sworn to April 28, 2005, in support.......................3

Affidavit of Nancy J. Larson, Esquire, Assistant Corporation Counsel, sworn

to April 29, 2005, in support, with exhibits attached thereto....................4

Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General,

in opposition..............................................................................................5

Unsworn Reply Affidavit of Nancy J. Larson, Esquire, Assistant Corporation

Counsel, in support................................................................................................6

[1] The motion was filed on May 2, 2005.