New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2006-028-520, Claim No. NONE, Motion No. M-71092


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:
COUGHLIN & GERHART, LLPBY: Peter H. Bouman, Esq.
Defendant's attorney:
BY: Joseph F. Romani, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 17, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's application for permission to file a late Claim pursuant to Court of Claims Act § 10 (6):

1. Notice of Motion filed December 23, 2005;

2. Affidavit of Peter H. Bouman, Esq. sworn to December 19, 2005 with annexed exhibits and Memorandum of Law;

3. Affidavit of Eric Scott sworn to December 14, 2005;

4. Affirmation in Opposition of Joseph F. Romani, AAG (Romani Affirmation) filed January 9, 2006;

5. Affidavit in Response of Peter H. Bouman, Esq. (Bouman Response) filed January 10, 2006.

Filed papers: none

Claimant Eric Scott moves for permission to file a late Claim pursuant to Court of Claims Act (hereinafter "CCA") § 10 (6). The State of New York (hereinafter "State") opposes the motion.

The proposed Claim alleges that on February 29, 2004, at approximately 11:50 p.m., Claimant was operating a snowmobile on a State-owned trail known as Carrol Hill Road in Steam Mill State Forest located in the Town of Tompkins, County of Delaware, State of New York. Claimant alleges that his snowmobile was approximately 150 to 200 feet behind a friend's snowmobile when without warning Claimant came upon a sharp left turn in the trail which he was unable to negotiate. Claimant's snowmobile left the trail and crashed into a tree. Claimant was airlifted to Johnson City Hospital. As a result of the accident, Claimant suffered, among other injuries, swelling of the brain, spinal cord damage, a broken collar bone, and functional loss of use of his left arm. Claimant alleges that New York State Troopers interviewed him in the hospital and conducted an investigation and accident reconstruction.[1] The proposed Claim alleges the State was negligent in failing to post warning signs, speed limit signs, or cautionary turn signs to indicate a sharp turn in the trail.

As a threshold matter, this Court has jurisdiction over a motion to late file when it is filed within the comparable time period for bringing similar actions against a citizen of the State (CCA § 10 [6]). The relevant time period for a negligence cause of action as asserted here is three years (CPLR § 214). As such, this motion filed on December 23, 2005 is timely relative to this matter which allegedly accrued on February 29, 2004.

Turning to the substance of this motion, the factors that the Court must consider in determining a properly framed CCA § 10 (6) motion are whether:

1. the delay in filing the Claim was excusable;

2. the State had notice of the essential facts constituting the Claim;

3. the State had an opportunity to investigate the circumstances

underlying the Claim;

4. the Claim appears to be meritorious;

5. 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

6. the Claimant has any other available remedy.

The first factor that should be addressed is whether the proposed Claim appears meritorious since it has been characterized as the most decisive component in determining a motion under CCA § 10 (6) and it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [1977]). In order to establish a meritorious Claim, Claimant must establish that the proposed Claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (id. at 11). Claimant asserts that he satisfied this burden based upon his allegations of the State's failure to post warning signs, speed limit signs, or cautionary turn signs to indicate a change in the snowmobile trail. The State argues that the dangers of operating a snowmobile, especially at 11:50 at night, are inherent in the sport and, as such, this proposed Claim would be subject to dismissal based upon the doctrine of assumption of risk were it allowed to proceed.

Assumption of risk "[i]s not an absolute defense but a measure of the defendant's duty of care..." (Turcotte v Fell, 68 NY2d 432, 439 [1986]). It is well-settled that "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d 471, 484 [1997]). However, a participant does not assume risks which are "unreasonably increased or concealed" (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658 [1989] quoting McGee v Board of Educ. of City of N.Y., 16 AD2d 99, 102 [1962], lv denied 13 NY2d 596 [1963]). Additionally, a litigant's assumption of risk is "[t]o be assessed against the background of the skill and experience of the particular plaintiff [citation omitted]" (Maddox v City of New York, 66 NY2d 270, 278 [1985]; Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607 [2003]).

In the first instance, the Court recognizes the well-settled principle that "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits" (Sessa v State of New York, 88 Misc 2d 454, 458 [1976], affd 63 AD2d 334 [1978], affd 47 NY2d 976 [1979]). Here, the State does not provide an affidavit from anyone with first-hand knowledge denying Claimant's allegations (Calzada v State of New York, 121 AD2d 988, 989 [1986]). As such, Claimant's allegations are unchallenged and thus accepted as true for purposes of this motion.

There is precedent for a negligence action involving a snowmobile accident to be dismissed upon a motion for summary judgment based on assumption of risk (Blount v Town of West Turin, 195 Misc 2d 892 [2003] [presence of snowbank found to be inherent danger of snowmobiling and action dismissed based upon assumption of risk]). However, the Court finds that the procedural stage of this matter as a late filing motion distinguishes it from Blount. In other words, while the standard on a late filing application clearly places a heavier burden on a party who fails to comply with the statutory requirements than a party filing a timely claim, it does not require a Claimant on a late filing motion to overcome all objections nor does it suggest that the Court should engage in the kind of fact-finding on a late filing motion that would ultimately be necessary to adjudicate the actual merits of the case (Matter of Santana, 92 Misc 2d at 11-12). Thus, whether a sharp turn in a snowmobile trail and/or lack of signage is an inherent danger in the sport and/or the degree to which Claimant's experience or inexperience in snowmobiling played a part in this accident are all issues that the Court need not determine at this juncture. This is not to say, however, that this litigant will be successful at trial or be able to withstand a motion for summary judgment after full and complete disclosure, only that based upon these undisputed allegations Claimant has satisfied the minimal burden of establishing that his proposed Claim appears meritorious. Consequently, the Court finds that the factor of merit weighs in favor of granting Claimant's application.[2]

With respect to the remaining factors, Claimant asserts that his failure to timely file a Claim was due to the severe nature of his injuries. However, Claimant failed to submit any medical records or a physician's affidavit to substantiate his assertion of medical incapacity through the statutory period (Cabral v State of New York, 149 AD2d 453 [1989]). Consequently, the Court finds this factor weighs against Claimant.

The factors of notice of the essential facts, opportunity to investigate, and lack of substantial prejudice will be discussed together since they involve analogous considerations.

Claimant contends that the State had actual notice of this accident based upon the response and investigation by New York State Troopers, as well as the accident report prepared by the New York State Office of Parks, Recreation and Historic Preservation (Bouman Response, Exhibit B). In response, the State does not admit or deny these allegations but rather indicates that it has yet to receive information from the involved State agencies which prevents it from formulating a substantive response (Romani Affirmation, ¶ ¶ 5 & 10). In the absence of a substantive response from the State, the Court finds these three factors weigh in favor of granting Claimant's application.

Finally, with respect to the final factor of the availability of an alternate remedy, Claimant argues that no alternate remedy exists, while the State argues it is unclear if any alternate remedy exists due to the lack of information regarding this incident from its own agencies (Romani Affirmation, ¶ 14). The Court finds this factor weighs in favor of Claimant.

Consequently, upon reviewing and balancing all of the factors enumerated in CCA § 10 (6), the Court finds that five of the six factors, including the all important factor of merit, weigh in favor of granting Claimant's motion for permission to file a late Claim pursuant to CCA § 10 (6).

In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to file a late Claim, Motion No. M-71092, is GRANTED. Claimant shall file a 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 with the Clerk of the Court. The service and filing of the Claim shall be in conformity with all applicable statutes and rules of the Court with particular reference to CCA §§ 10, 11 and 11-a.

February 17, 2006
Albany, New York

Judge of the Court of Claims

[1]The Court notes that although the accident report suggests the involvement of alcohol, Claimant's counsel states that alcohol tests were negative (Claimant's Memorandum of Law, p 3).
[2]Although not raised by the State, Claimant argues that this proposed Claim is not barred by General Obligations Law § 9-103. The exact nature of this State trail is unclear on this limited record and, as such, the Court finds it is premature to determine whether this statutory provision has any application to this case.