New York State Court of Claims

New York State Court of Claims

KROCKE v. NEW YORK STATE THRUWAY AUTHORITY, #2006-031-014, Claim No. 109522, Motion Nos. M-70242, CM-70454


Duties of toll booth operator were governmental in nature. Claimant failed to demonstrate either negligence of toll booth operator or the existence of a special relationship between Claimant and Defendant. Claimant's motion for late claim relief is denied. Defendant's cross-motion to dismiss the claim is granted

Case Information

TERRY KROCKE and MARINA KROCKE The caption has been amended sua sponte to reflect the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper 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:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 23, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 11, were read on motion by Claimants for permission to file a late claim, and on cross-motion by Defendant for dismissal of the claim:
1. Claimants' Notice of Motion (M-70242), filed June 8, 2005;
2. Affirmation of Bradley P. Kammholz, Esq., dated June 3, 2005, with attached exhibits;
3. Claimants' Memorandum of Law, dated June 3, 2005;
4. Defendant's Notice of Cross-Motion (CM-70454), filed July 22, 2005;
5. Affirmation of James L. Gelormini, Esq., dated July 20, 2005, with attached exhibits;
6. Affidavit of Luis Cotto, sworn to July 18, 2005;
7. Defendant's Memorandum of Law, dated July 20, 2005, with attachments;
8. Reply Affirmation of Bradley P. Kammholz, Esq., dated August 15, 2005, with attached exhibits;
9. Affidavit of Basil A. Andreacchi, sworn to August 2, 2005;
10. Correspondence of James L. Gelormini, Esq., dated August 23, 2005;
11. Correspondence of Bradley P. Kammholz, Esq., dated September 19, 2005. BACKGROUND

On June 23, 2002, at approximately 2:45 p.m., Claimant Terry Krocke[1] was injured when he tried to assist an elderly traveler whose car had stalled near a toll booth at exit 47 (LeRoy) of the New York State Thruway. According to his claim filed on June 23, 2004, the vehicle driven by the elderly traveler (Mr. Basil Andereacchi) stalled at the toll booth and the toll both operator instructed Mr. Andereacchi to push the car out of the way. Claimant, seeing that the elderly man was having trouble moving the vehicle by himself, pulled over and got out of his car to help. As Claimant walked behind his own car and toward the disabled vehicle, Mr. Andereacchi slipped and fell. His car rolled into Claimant, pinning him between his car and Andereacchi's car. Claimant suffered various crushing type injuries, including fractured ribs and a punctured lung. He alleges that Defendant was negligent in: 1) ordering Andereacchi to push his car; 2) failing to assist Andereacchi; 3) failing to follow its own guidelines for removal of stalled vehicles; 4) failing to train or supervise properly; and 5) creating the hazard that invited rescue.

Claimant served a notice of intention to file a claim upon the office of the Attorney General on August 29, 2002, and, as stated earlier, the claim was filed on June 23, 2004, two years to the day after the accident. In its answer, Defendant has asserted that the notice of intention was defective and, therefore, it did not operate to extend the time period during which Claimant could file a timely claim. Accordingly, Defendant asserts that the claim is untimely and should be dismissed on this basis.

Claimant, recognizing the jurisdictional defect alleged by Defendant, has responded by bringing motion M-70242 for permission to file a late claim. Defendant has filed cross-motion CM-70454 seeking dismissal of the claim. Initially, I note that the only proper Defendant is the New York State Thruway Authority ("Thruway Authority"). The Thruway Authority is an independent and autonomous public benefit corporation which is solely responsible for the operations of the New York State Thruway. Accordingly, the State of New York is not a proper Defendant in this action (see Reynolds v State of New York, Ct Cl, June 7, 2001 [Claim No. 101868, Motion Nos. M-62810 and CM-63045], Sise, J., UID #2001-028-0537).
With regard to Defendant's cross-motion, Defendant alleges and Claimant has conceded that the notice of intention served on August 29, 2002, fails to set forth the nature of the claim, how Defendant was negligent or even that Claimant suffered injury. The notice of intention was, therefore, defective and did not extend Claimant's time to serve and file a claim (see Sega v State of New York, 246 AD2d 753, 755). Accordingly, claim 109522 was not timely filed and I must grant Defendant's cross-motion for dismissal.
Subdivision 6 of § 10 of the Court of Claims Act ("CCA") enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination. (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

With regard to his excuse for the delay, Claimant indicates that his prior attorney was unfamiliar with the requirements of the CCA. Such excuses are not legally acceptable and I find that this factor weighs in Defendant's favor. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing a § 10(6) application, and does not necessarily preclude the relief sought here (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

With regard to alternative remedies, Claimant concedes that he commenced and apparently settled an action against Mr. Andereacchi. Accordingly, I find that this factor also weighs in Defendant's favor.

The next three factors covering notice, opportunity to investigate and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). In this regard, Claimant merely alleges that Defendant had notice of the events and an opportunity to investigate, apparently because the party Claimant alleges was negligent, toll booth operator Luis Cotto, witnessed the accident. This is not the same as notice to Defendant that a law suit might be filed against it. Also, there is no indication that Defendant was aware of the nature of the cause of action or Claimant's theory of liability at any time prior to the claim being filed two years to the day after the accident occurred. However, as Mr. Cotto is still employed by Defendant and has, in fact, submitted an affidavit indicating his recollection of the events as they occurred on that day, I find that Defendant has not suffered substantial prejudice as a result of Claimant's failure to file a timely claim in this matter.

Of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant. It would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Defendant argues that the proposed claim lacks merit for two reasons. First, Defendant maintains that Claimant has failed to demonstrate any negligence on the part of Defendant's employee. Second, even assuming negligence, Defendant argues that because Mr. Cotto was performing a governmental function, the New York State Thruway Authority ("Thruway Authority") cannot be held liable unless a special relationship existed between the Thruway Authority and Mr. Krocke. Citing the recent Court of Appeals decisions in two cases decided jointly, Kovit v Estate of Hallums and Lazan v County of Suffolk (4 NY3d 499), Defendant has argued forcefully that no such special relationship existed between Claimant and Defendant.

At oral argument, counsel for Claimant conceded (again, appropriately) that no special relationship existed between Claimant and Defendant. Claimant's counsel argued, however, that no special relationship is needed because Mr. Cotto was not performing a governmental function and, alternatively, to the extent that he was performing a governmental function, his actions were not discretionary and therefore are not protected by the doctrine of governmental immunity.

Although I found that counsel for both parties briefed and argued the issues admirably, I am constrained to find that liability cannot attach in this matter. I find initially that Claimant has failed to offer any evidence that Mr. Cotto was negligent. In this regard, I disagree with Claimant's interpretation of the Thruway Authority's "Toll Collection Manual" (the "Manual") which governed Mr. Cotto's conduct. The Manual was permissive and gave the operator discretion as to how to handle a situation in which a vehicle becomes disabled in or near the toll lane. An operator may, but is not required to, call for a tow truck or personally offer assistance.[2] There simply is no indication that Mr. Cotto violated the provisions of the Manual or handled the situation in a negligent manner. I find that Defendant cannot be held liable for failure to properly train or supervise Mr. Cotto. Not only has there been no indication of negligence on Mr. Cotto's part, but Defendant correctly asserts that such a cause of action may not be maintained where, as here, Defendant is vicariously liable for its employees negligence (Trader v State of New York, 277 AD2d 978). I further find that Defendant did not create the hazard to which Claimant responded.

Assuming agruendo that Claimant could demonstrate negligence, he must still contend with Defendant's assertion that the doctrine of sovereign immunity precludes recovery for such a claim. I note that the powers of the Thruway Authority are contained in Sec. 353 of Title 9 of the Public Authorities Law which reads:
"Purposes of the authority and benefits therefrom. The authority is created to and shall have power to finance, construct, reconstruct, improve, develop, maintain or operate a thruway system as provided by and subject to the provisions of this title together with facilities for the public incidental thereto. It is hereby found and declared that such purposes are in all respects for the benefit of the people of the state of New York for the increase of their pleasure, convenience and welfare, for the improvement of their health, to facilitate transportation for their recreation and commerce and for the common defense; and the authority shall be regarded as performing a governmental function in carrying out its corporate purpose and in exercising the powers granted by this title" (emphasis added).
Mr. Cotto was, by definition, performing a governmental function when he interacted with Mr. Andereacchi. Also, as the concept of discretionary action is to be interpreted broadly (Matter of Filmway Communications of Syracuse v Douglas, 106 AD2d 185) and as the Manual provided several possible ways for a toll booth operator to deal with a disabled vehicle, I find that Mr. Cotto was performing a discretionary act when he instructed Mr. Andereacchi to move his vehicle. Therefore, Claimant cannot recover from Defendant absent a showing of a special relationship (see e.g. Pelaez v Seide, 2 NY3d 186). As Claimant has conceded, no such relationship existed. Accordingly, despite my sincere sympathy for Mr. Krocke, the Thruway Authority is immune from any errors in judgment made by Mr. Cotto in failing to properly remove Mr. Andereacchi's vehicle (see Di Florio v Worden, 303 AD2d 924). I find, therefore, that the proposed claim lacks the appearance of merit.

After a review of all of the factors set forth in § 10(6) of the CCA, I find that they weigh in Defendant's favor.

Accordingly, for the reasons set forth above, it is hereby

ORDERED, that Claimants' motion for permission to file a late claim is denied. And it is further

ORDERED, that Defendant's cross-motion is granted and claim 109522 is hereby dismissed in its entirety.

March 23, 2006
Rochester, New York

Judge of the Court of Claims

[1]Marina Krocke is also a Claimant in this matter, however, as her claims are entirely derivative, unless otherwise specified, all references to Claimant are to Terry Krocke.
[2]There exists a factual dispute concerning whether or not Mr. Cotto offered assistance to Mr. Andereacchi. In light of the guideline's permissive position on this issue, however, I find that resolution of this factual dispute is not necessary for an analysis of the meritoriousness of Claimant's application.