New York State Court of Claims

New York State Court of Claims

LOPERFIDO v. THE STATE OF NEW YORK, #2006-028-546, Claim No. 110163, Motion Nos. M-70229, CM-70433


Synopsis


Failure to serve a copy of the claim on the Attorney General requires dismissal of the action. Claimants’ cross motion for permission to late file is unnecessary with respect to the personal injury claim of one Claimant and a survival claim for personal injuries to decedent, and timely with respect to the action for wrongful death.


Case Information

UID:
2006-028-546
Claimant(s):
AMOGLIA V. LOPERFIDO, Individually & JOSEPH JAMES LOPERFIDO, Individually and as Personal Representative of the Estate of JOSEPH A. LOPERFIDO
1 1.On October 8, 2004, Limited Letters of Administration were issued by Surrogate’s Court of Onondaga County to Joseph James Loperfido, authorizing him to prosecute the cause of action on behalf of the Estate of Joseph A. Loperfido. Amoglia V. Loperfido is suing only in an individual capacity.
Claimant short name:
LOPERFIDO
Footnote (claimant name) :
On October 8, 2004, Limited Letters of Administration were issued by Surrogate’s Court of Onondaga County to Joseph James Loperfido, authorizing him to prosecute the cause of action on behalf of the Estate of Joseph A. Loperfido. Amoglia V. Loperfido is suing only in an individual capacity.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110163
Motion number(s):
M-70229
Cross-motion number(s):
CM-70433
Judge:
RICHARD E. SISE
Claimant’s attorney:
CHERUNDOLO, BOTTAR & LEONE, LAWYERS, PLLCBY: Robin C. Zimpel, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Thomas M. Trace, Esq.Senior Attorney
Third-party defendant’s attorney:

Signature date:
April 13, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on an Order to Show Cause relating to service of the claim (Motion No. M-70229) and on Claimants’ Cross Motion for permission to file and serve an untimely claim:[2]

1. Order to Show Cause, issued June 3, 2005


2. Affidavit of Janet A. Barringer, New York State Department of Law


3. Notice of Cross Motion and Affidavit of Robin C. Zimpel, Esq., with annexed Exhibits and Memorandum of Law


4. Affirmation in Opposition to Cross Motion of Thomas M. Trace, Esq.


5. Reply Affidavit of Robin C. Zimpel, Esq.


Filed papers: Claim


Claim No. 110163 alleges that on July 2, 2004, the vehicle carrying Claimant Amoglia V. Loperfido and her late husband Joseph A. Loperfido was turning off the New York State Thruway (I-90) at the Rome, NY exit when it was struck broadside by a vehicle traveling on State Route 365. They were both injured, and Joseph A. Loperfido died as a result of his injuries the following day. The Claim alleges that the intersection of I-90 and Route 365 is alleged to be a dangerous intersection because of the manner in which the traffic signals were set up and operated on the day in question. The Claim also states that a Notice of Intention (Zimpel affidavit, Exhibit D), was served on the Attorney General on September 29, 2004, which was fewer than ninety days after the accident.

No answer was ever filed by Defendant, and, consequently, on June 3, 2005, the Court issued an Order to Show Cause requiring the parties to submit statements regarding service of the Claim by Claimants and receipt or non-receipt of the Claim by Defendant. In response, Janet A. Barringer, a Senior Clerk within the Attorney General’s Office, submitted an affidavit stating that she had made a thorough search of the records of that office and found only the Notice of Intention, which had been personally served on September 29, 2004, and a letter from the Court of Claims, dated December 13, 2004, acknowledging that the Claim had been filed with the Court on December 1, 2004. She found no record of the Claim being served on the Attorney General (Barringer affidavit, ¶ 4).

Claimants’ counsel acknowledges that a copy of the Claim was not served on Defendant,[3] and therefore Claim No. 110163 must be dismissed. Anticipating this outcome, Claimants brought a cross motion for what the Court has determined to be permission to file an untimely claim. The substantive content of the proposed claim (Zimpel affidavit, Exhibit K[4]; Zimpel reply affidavit, Exhibit 1[5]) is essentially identical to that of Claim No. 110163.

Late claim relief is available only if the motion is brought within the applicable CPLR Article 2 statute of limitations. The three causes of action asserted in the proposed claim presents different issues in this regard.

Amoglia V. Loperfido’s claim to recover for her own personal injuries accrued on July 2, 2004, the date of the accident. The time limitation applicable to such a cause of action is found in section 10(3) of the Court of Claims Act: either a Claim must be filed and served or a Notice of Intention served within 90 days of the date of accrual, and if a Notice of Intention is employed, then the Claim must be filed and served within two years of the date of accrual. Because there was a timely Notice of Intention with relation to this cause of action and the two year period does not expire until July 2, 2006, a motion to late file is unnecessary with respect to that cause of action.

The cause of action for the personal injuries and pain and suffering of Joseph A Loperfido accrued at the same time, and the same 90 day/two year time limitation applies to it. Upon death, the right to bring or continue a claim that could have been asserted by the decedent vests in his personal representative (EPTL § 11-3.2), that is, the person who has received letters to administer the estate of a decedent (EPTL § 1-2.13). As noted above, however, letters of administration were not issued until October 8, 2004, beyond the 90 day period, and thus there was no personal representative to bring, or preserve the right to bring by serving a Notice of Intention, the personal injury claim within the initial time period required by Court of Claims Act §10(3).

A timely Notice of Intention setting forth these injuries had been served, however, by “Amoglia V. Loperfido, Individually and as personal representative of the Estate of Joseph A. Loperfido, deceased, and The Estate of Joseph A. Loperfido,” (Apparently it was assumed at the time that she would be the administrator of her husband’s estate.) The parties disagree strongly as to whether this Notice of Intention, made by someone who was not and did not become his personal representative, can serve to preserve Joseph Loperfido’s cause of action for personal injury and pain and suffering.

Defendant asserts that this Notice of Intention is a nullity because it was not made by the personal representative and, in addition, that the personal representative’s time in which to move for permission to late file has expired through operation of CPLR 210(a). That statute provides that when a person dies before the expiration of the time within which an action must be commenced and the cause of action survives, the action may be commenced by the decedent’s personal representative within one year after the death. Consequently, Defendant argues, the time in which to file a claim was not extended to two years pursuant to Court of Claims Act §10(3) because no proper Notice of Intention was served by the decedent’s personal representative within the first 90 days, and the time in which the personal representative could move for permission to late file expired on July 3, 2005, one year after Joseph A. Loperfido’s death. This argument misapprehends the law in several respects.

To begin with, the tolls and extensions of CPLR article 2 do not apply to the statutory periods for filing and/or serving a Claim or Notice of Intention against the State of New York: “Given that Court of Claims Act § 10 is more than simply a Statute of Limitations, the CPLR tolling provisions may not be used to extend its limits, unless, of course, doing so is expressly authorized by the section itself” (Kaplan v State of New York, 152 AD2d 417, 419 [3d Dept 1989] [CPLR 210[a]]; see also Burke v State of New York, 169 AD2d 806 [2d Dept 1991] [CPLR 215[8]]; Coleman v Webb, 158 AD2d 500, 502 [2d Dept 1990] [CPLR 205[a]]; DeFilippis v State of New York, 157 AD2d 826 [2d Dept 1990][CPLR 210[a]]). Consequently, either the Notice of Intention served by the decedent’s wife was effective, in which case the claim can be filed anytime before July 3, 2006 (two years after accrual), or the Notice of Intention was ineffective, in which case the decedent’s personal representative has until July 2, 2007 in which to move for permission to late file (i.e., until the CPLR 214 three-year Statute of Limitations runs).

The situation presented here – where no personal representative is appointed in time to take action within the 90 days after a personal injury claim accrues – is neither unusual nor unforeseeable. Essentially the same situation was presented in Tessier v State of New York (Claim No. 109692, Motion Nos. M-69090, CM-69544 [Ct Cl May 5, 2005], Fitzpatrick, J., UID #2005-018-467) and Aronson v State of New York (Claim No. NONE, Motion No. M-65339 [Ct Cl Dec 27, 2002], Sise, J., UID #2002-028-075), and undoubtedly other cases. Because of such situations and because a Notice of Intention is not a pleading, it has uniformly been held that a Notice of Intention can be served by a spouse, a child, or “any interested person” (DeFilippis v State of New York, 157 AD2d 826, 828 [2d Dept 1990], citing; Antoine v State of New York, 103 Misc 2d 664, 668-669 [Ct Cl 1980]; see also Pelnick v State of New York, 171 AD2d 734 [2d Dept 1991]; Matter of Johnson v State of New York, 49 AD2d 136 [3d Dept 1975], citing Winbush v City of Mount Vernon, 306 NY 327, 334 [1954]).[6] Consequently, because there was a timely and effective Notice of Intention with relation to this cause of action and the two year period in which the personal representative can commence the action does not expire until July 2, 2006, a motion to late file is unnecessary with respect to survival cause of action for injuries suffered prior to death by Joseph A. Loperfido.

Finally, with respect to the cause of action for wrongful death, pursuant to sections 10(2) and 11(a) of the Court of Claims Act, a Claim can be filed and served, or a Notice of Intention served, within 90 days after appointment of the executor or administrator of the estate. If a Notice of Intention is employed, the Claim must be filed and served within two years after the date of death of the decedent. Joseph James Loperfido was appointed the decedent’s personal representative on October 8, 2004. Claim No. 110163 was filed with the Court on December 1, 2004, within 90 days of the appointment, but since it was not served on the Attorney General, it did not commence an action.

The Statute of Limitations applicable to wrongful death claims, and thus to the time in which a motion to late file can be commenced, is two years (EPTL § 5-4.1; Wright v State of New York, 195 Misc 2d 597 [Ct Cl 2003], appeal dismissed 11 AD3d 1000 [4th Dept 2004] and cases cited therein). Section 10(2) of the CCA also provides that a claim for wrongful death must “in any event” be commenced within two years of the date of death. Decedent’s personal representative, therefore, has until July 3, 2006 in which to move for permission to late file, and this motion is both necessary with respect to the wrongful death claim and is timely brought.

In order 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 the Court of Claims Act § 10(6), as well as any other relevant factors. The existence or absence of any one of these factors is not determinative, and the list of factors is not exhaustive (Bay Terrace Cooperative Section IV, Inc. v New York State Employees’ Retirement System, Policemen’s and Firemen’s Retirement System, 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The six statutory factors are as follows:
(1) whether the delay in filing the claim was excusable;
(2) whether the State had notice of the essential facts constituting the claim;
(3) whether the State had an opportunity to investigate the circumstances underlying the claim;

(4) whether the claim appears to be meritorious;
(5) whether the failure to file or serve upon the attorney general a timely claim or to serve a notice of intention resulted in substantial prejudice, and

(6) whether the claimant has any other remedy.

On the issue of delay, law office failure is not an acceptable excuse for failing to comply with the time limits set forth in the Court of Claims Act (Matter of Galvin v State of New York, 176 AD2d 1185 [3d Dept 1991], lv denied 79 NY2d 753; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd on opn below 42 NY2d 854; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]). Accordingly, the Court finds that this factor weighs against the movant.

With respect to the existence of an alternative remedy, Claimants have commenced proceedings in Supreme Court against other defendants, including a products liability claim against General Motors Corp. Their counsel observes, however, that there is no guarantee that Claimants will prevail in that action (Memorandum of Law, p 12). If, as Claimants allege, the manner in which the traffic lights were operating was the primary cause of the accident, then a lawsuit against the other driver might also result in a finding of no liability. It appears that, at best, Claimants have only a partial alternative remedy.

The factors of notice, opportunity to investigate and potential prejudice to the Defendant are interrelated. Because Claimants served a timely Notice of Intention on the Attorney General, Defendant had all of the notice to which it was entitled by statute (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). In fact, with respect to the cause of action for wrongful death, which is the only subject of this late claim motion, the September 2004 Notice of Intention gave considerably more notice than the Court of Claims Act would require, since no personal representative had yet been appointed. Consequently, there has been no interference with the State’s opportunity to investigate the circumstances underlying the claim, and the State would not be prejudiced if the requested relief is granted (Crawford v City Univ. of New York, 131 Misc 2d 1013, 1016 [Ct Cl 1986]).

Of the six enumerated factors set forth in §10(6), it is the appearance of merit which weighs most heavily, because it would be pointless to permit the filing of a claim that did not appear to be meritorious (see e.g. Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). To succeed in satisfying this criterion, it must be established that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Defense counsel acknowledges that there had been a power outage in this area the night before the accident and that it had resulted in the traffic light changing to flashing lights, of different color in either direction, from the normal rotation of intermittent red, yellow and green lights (Trace affirmation, ¶ 2). Claimants allege that the flashing lights were confusing and that confusion caused the accident. The only way to determine whether this is true is to permit the parties to conduct discovery and learn the exact, complete facts regarding the operation of the lights and what they would apparently be signaling to drivers approaching from either direction. The claim is not, on its face, groundless, frivolous or legally defective and there is sufficient cause to believe that a valid cause of action exists.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting the requested relief. Claimant Joseph James Loperfido is given permission to file and serve a claim setting forth the wrongful death cause of action (and carrying the proper caption of “Claim” rather than “Notice of Claim”) and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed. If Claimants wish, they may join all three causes of action together as they have done in the proposed claim, as the two personal injury claims have to be commenced by July 2, 2006.

Claim No. 110163 is dismissed because a copy of the claim was not served on the Attorney General; Claimants’ cross motion for permission to file an untimely claim is granted with respect to the cause of action for wrongful death and denied as unnecessary with respect to the two personal injury causes of action.



April 13, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[2]. The cross motion was described by Claimants as being for permission to file and serve a late “Notice of Intention to Claim.” Presumably this refers to a Notice of Intention to File a Claim. Court of Claims Act §10(6) “is unambiguous in that it authorizes motions to file late claims, and omits any authorization for motions to file late notices of intention (DeHart v State of New York, 92 Misc 2d 631, 637 [Ct Cl 1977]). In his reply affidavit, counsel for Claimants amends the caption of the proposed pleading to the less-incorrect “Notice of Claim.” The pleading that commences a Court of Claims action is correctly referred to as a “Claim.”
[3]. In the letter accompanying the Claim and filing fee that was sent to the Court of Claims, a paralegal in the office of Claimants’ counsel asked that the Court effect service on the Attorney General, reflecting a procedure that had sometimes been followed in the past. Reference to that procedure was removed from section 11 of the Court of Claims Act in 1984 (L 1984, c 427, § 1).
[4]. This document is improperly captioned “Notice of Intention to Claim” (see footnote 2).
[5]. This document is improperly captioned “Notice of Claim.”
[6]. It should be noted, however, that the only person who can actually commence a survival action (which in this Court is accomplished by filing and serving the claim) is a duly appointed personal representative who holds letters of administration (Lichtenstein v State of New York, 93 NY2d 911 [1999], citing EPTL §§ 11-3.2 and 1-2.13; Peck v State of New York, Claim No. 92487, Motion No. M-61901 [Ct Cl July 21, 2000] Corbett, J., UID #2000-005-524). Thus, if no personal representative is appointed prior to the 90-day cutoff, the only way to preserve the right to bring the cause of action at a later time is for an interested party to serve a Notice of Intention.