New York State Court of Claims

New York State Court of Claims

RICE v. THE STATE OF NEW YORK, #2006-028-598, Claim No. NONE, Motion No. M-71150


Permission to late file is granted. Movant’s physical condition following her accident provides an acceptable excuse for delay in commencing this action, and the impact of her condition and the burden placed on her husband provide a similar acceptable excuse for delay in commencing his derivative cause of action. Where the apparent merit of one theory of liability can be established without the aid of an expert affidavit and proof of both theories of liability will be similar, there is no prejudice in allowing the claim to proceed on both theories.

Case Information

1 1.The caption of this action is amended sua sponte ro reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte ro reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
BY: Thomas M. Trace, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 18, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movants’ motion for permission to file an untimely claim

1. Notice of Motion and Supporting Affidavit (“Declaration”) of Andrew J. Maloney, III, Esq., with annexed Exhibits and Memorandum of Law (“Memorandum of Points and Authorities”)

2. Affirmation in Opposition of Thomas M. Trace, AAG, with annexed Exhibits

3. Movants’ “Reply Brief” with annexed Exhibits

Filed papers: None

Movants’ proposed Claim (Maloney Affidavit, Exhibit 3) alleges that on July 24, 2004, Movant Pamela Rice[2] was operating her motorcycle at the interchange of Edic Road and State Route 49 in the Town of Marcy. It is alleged that the ramp at this intersection incorporated a sharp curve which could not be traveled safely by a motorcycle. In addition, it is alleged, the sign advising of the speed limit on the ramp was hidden from view. Movant was unable to negotiate the curve in a safe manner, and her motorcycle collided with a guide rail, went out of control, and crashed. Movant suffered very serious injuries, including permanent paralysis.

This motion was instituted within the applicable three-year CPLR, Article 2 statute of limitations (CPLR 214) and consequently is timely.

The statute’s non-exclusive list of the factors that the Court must consider in determining a properly framed Court of Claims Act § 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 commence a timely action resulted in substantial prejudice to the State; and

6. the Claimant has any other available remedy.

The Court in the exercise of its discretion balances these factors (Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]), and as a general proposition, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]).

In the instant case, the reason given for the delay in commencing an action against the State was the seriously disabled condition in which Movant was left following the accident. Her back was broken; she was taken in for immediate surgery; and she spent the next two months in either a hospital or rehabilitation center. When she was sent home, she had lost the use of her legs and wore a back brace. Transition was so difficult that at one point she had to return to the rehabilitation center for an additional three weeks. Movant remains paralyzed from the chest down and confined to a wheelchair. Her husband, Darwin Rice, was a truck driver, and following his wife’s accident, he had to quit his job in order to care for her and for the couple’s three children. Their counsel states that it was not until August 2005, approximately a year after the accident, that Movants were able to consult an attorney (Memorandum of Points and Authorities, p 1). A Notice of Intention, alleging both improper design and inadequate notice of the speed limit, was served on the Attorney General on September 12, 2005 (Maloney Declaration, Exhibit 2).

It is asserted that Movant was under a “legal disability” from the time of the accident until she returned to work on June 29, 2005 and thus she has two years from that date in which to commence an action. While Court of Claims Act §10(5) does permit an extension of up to two years for someone “under [a] legal disability,” this term refers to the disabilities that operate as an extension of statute of limitations periods under CPLR 208 – infancy and insanity – and to individuals who have been judicially determined to be incapacitated persons (Baker v State of New York, 186 AD2d 329 [3d Dept 1992]).

In any event, it is not necessary for Movant to be considered as someone under a legal disability in order for her incapacity following the accident to be considered a justifiable excuse for delay. Typically, in order to establish that the injured party was sufficiently incapacitated so as to excuse his or her compliance with the applicable time limitations, the Court must be provided with a physician’s affidavit or hospital records (Goldstein v State of New York, 75 AD2d 613 [2d Dept 1980]), and defense counsel challenges any finding of incapacity here because no such affidavit or records were provided. Movants have provided, however, their own affidavits (Reply Brief, Exhibits A, B) detailing the degree of incapacity suffered by Mrs. Rice and interference with the normal routines of life caused by her catastrophic injuries. In this particular circumstance, the Court finds these submissions sufficient to demonstrate a medical incapacity through the statutory time period.

With respect to the derivative claim of Movant Darwin Rice, however, his application must be considered on its own merit (see Leibowitz v State of New York, 82 Misc 2d 424 [Ct Cl 1975]; Blatt v State of New York, 19 Misc 2d 3 [Ct Cl 1959]). It has been held that parental preoccupation with the health and welfare of an injured child, while appropriate and laudable, is not deemed a reasonable excuse for the late filing of a parent's derivative claim (Porreca v State of New York, 28 Misc 2d 1098 [Ct Cl 1961]; Moore v State of New York, UID #2002-015-277, Claim No. NONE, Motion No. M-65101[Ct Cl 2002], Collins, J.). To some degree, the same reasoning could apply to the derivative claim of a spouse. But, at least in the situation presented here, Movant’s husband was understandably preoccupied with the health and welfare of his wife, and also had to contend with the impact of her injury on his job and earning power and the health and welfare of the couple’s children, for whom he was solely responsible during the unsettled time following the accident. A spouse who is caretaker for an entire family has many more pressures on him or her than does a parent who has an injured child, as a child would already require a significant amount of time and care even if there was no injury.

In addition, to anticipate another factor that must be considered on these applications, Defendant will not suffer any substantial prejudice in defending against the derivative claim if permission is granted for the primary claim to be filed, because the proof of liability will be the same and a defense will already have to be provided (Caldwell v State of New York, UID #2006-032-010, Claim No. 110294, Motion Nos. M-70338, M-70339 [Ct Cl 2006], Hard, J.).

With respect to the accident itself, the State had notice of the essential facts constituting the claim, as well as Movants’ intention to commence a lawsuit, as of
September 12, 2005, when a Notice of Intention was served on the State, but this was more than a year after the incident itself. The argument of Movants’ counsel that the State had sufficient notice of the accident because a Police Accident Report was completed, by an Oneida County Deputy Sheriff, simply because it appeared on a form developed by the New York State Department of Motor Vehicles form is unavailing. Knowledge on the part of local officials cannot be imputed to the State (Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Lewis v State of New York, UID #2004-015-424, Claim No. 109162, Motion No. M-68740 [Ct Cl 2004], Collins, J.). On the other hand, it is evident that there were highway crews at work at the location in question, since a photograph of the speed sign taken three days after the accident show that it is was deliberately covered (Reply Brief, Exhibit C). Moreover, the roadway conditions that are relevant to the claim – the structure of the ramp and the speed sign – are not transitory in nature. Defendant does not argue that these conditions changed in the interim between June 2004 and September 2005 or identify any other specific way in which the passage of time has prejudiced the State in its ability to investigate the allegations against it or to provide a defense.

If the accident was caused by either or both of the conditions alleged in the proposed claim, Movant does not have an available remedy against any party other than the State

As indicated above, the presence or absence of any one factor is not dispositive of a late claim motion. On the other hand, the apparent merit of the proposed claim must be the most critical factor, as it would be futile to permit a meritless claim to proceed (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). Movant must establish the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Movant need not establish a prima facie case at this point, but rather the “appearance of merit,” a standard which has been described as a “low threshold” (Bernard v State of New York, Ct Cl, Bell, J., August 4, 2000, UID#2000-007-043, Motion No. M-61948 ). Generally, in reviewing the allegations in the proposed claim the facts alleged by movants are deemed to be true for purpose of motion, unless they are denied or contradicted (Sessa v State of New York, 88 Misc 2d 454, 458 [Ct Cl 1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]).

An expert’s affidavit of merit is necessary where the alleged wrongdoing of the State cannot be assessed on the basis of common everyday experience and knowledge (Matter of Caracci v State of New York, 178 AD2d 876 [3d Dept 1991]; see e.g. Klinger v State of New York, 213 AD2d 378 [2d Dept 1995] [installation of a traffic signal]; Schreck v State of New York, 81 AD2d 882 [2d Dept 1981] [medical affidavit establishing a causal connection]; Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992] [erection of a median barrier]). There are exceptions to this requirement, however, where the application includes sufficient information from which the Court can reasonably assess the merits of the proposed claim (see De Paolo v State of New York, 99 AD2d 762 [2d Dept 1984]) or where “common everyday experience and knowledge allow an assessment of the circumstances” (Nyberg v State of New York, supra, at 203).

The proposed claim alleges that Movant’s accident was caused by the State’s negligence in two respects: improper design of the ramp on which the accident occurred and permitting the speed limit sign on the ramp to be hidden from view. Although an expert affidavit would be helpful in the Court’s assessment of the potential merit of the former basis of liability, there is no such need with respect to the latter. A claim alleging that a vehicular accident was caused by the absence of a speed limit sign can be assessed on the basis of “common everyday experience” and is neither patently groundless, frivolous, nor legally defective and provides reasonable cause to believe that a valid claim exists. Moreover, proof related to the effect of a missing speed sign (i.e., whether such defect caused Movant’s accident) involves many of the same types of testimony and evidence that would be involved in establishing whether the shape or angle of the ramp itself contributed to loss of control of a motorcycle going at a particular speed. Therefore, there is no prejudice to Defendant in permitting the claim to go forward on both interrelated theories of liability.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting Movants’ motion for permission to file a late claim. Accordingly, the application for permission to late file a claim is GRANTED and Movants are directed to file and serve a claim identical to the proposed claim (but with corrected caption) 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.

October 18, 2006
Albany, New York

Judge of the Court of Claims

[2]. The proposed claim of Darwin Rice is derivative in nature and, unless otherwise indicated or required by context, the term “Movant” shall refer to Pamela Rice.