New York State Court of Claims

New York State Court of Claims

RICHIE v. NEW YORK STATE THRUWAY AUTHORITY, #2006-032-059, Claim No. N/A, Motion No. M-71342


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:
Grace & Grace, Esqs.By: Michael J. Grace, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael W. Friedman, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
July 10, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves this Court for leave to file a late claim.[1]

In support of her request, claimant submits a proposed negligence claim. In the proposed claim, claimant alleges that on February 8, 2004, she was a passenger in a vehicle operated by Andrianna Moustakas and traveling northbound on the State Thruway near mile marker 80.7. At some point, the vehicle left the road and struck a rock embankment. The vehicle then snagged on a rock protrusion, which caused it to spin and roll over. Claimant alleges that defendant violated its duty to maintain the rock face free of protrusions and in accordance with applicable highway safety standards. As a result of the accident, claimant suffered significant personal injuries, including multiple spinal fractures. In February 2006, claimant brought this application.

To determine whether an application for permission to file a late claim should be granted, the claim must be timely under the applicable Statute of Limitations and consideration must be given to certain statutory factors. These factors are whether: (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious (Court of Claims Act § 10 [6]). The presence or absence of any one factor is not determinative (see Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979 [1982]). Rather, 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 (see id.).

Initially, inasmuch as this negligence claim accrued on February 8, 2004 - the date of the accident (see Konigsberg v State of New York, 256 AD2d 982, 982-983 [3d Dept 1998]; Marine Midland Bank v State of New York, 195 AD2d 871, 873 [3d Dept 1993], lv denied 82 NY2d 661 [1993]), the late claim application is timely as the three-year Statute of Limitations set forth in CPLR §214 has not expired. Next, claimant fails to offer any excuse for her delay in bringing this claim and, therefore, this factor weighs in defendant's favor. The Court considers together the intertwined factors of notice, opportunity to investigate and prejudice. Claimant contends that no prejudice inures to defendant inasmuch as a claim arising from the accident has already been filed by the estate of a passenger killed in the accident. Based on this, and the fact that defendant does not argue that it is prejudiced by the delay, the Court determines that these factors weigh in claimant's favor. With respect to an alternative remedy, claimant has brought an action against the driver of the vehicle. Although claimant argues that the Workers' Compensation Law might preclude recovery against the driver, she provides no support for this proposition. Thus, this factor weighs in favor of defendant.

Finally, regarding merit, the proposed claim presents a potentially viable cause of action sounding in negligence. Claimant submits an expert affidavit by an engineer that based on his preliminary review of the accident, he opines that the accident may have been caused by defendant's failure to properly maintain the rock face in accordance with industry standards. Defendant submits an affidavit of an engineer that avers that the rock face conformed in all respects to the applicable highway standards. Based on this potential factual issue raised by these conflicting affidavits and the fact that there is already a pending action arising from the accident, the Court grants leave to file a claim (see e.g. Jomarron v State of New York, 23 AD3d 527, 528 [2d Dept 2005]).

In making this determination, the Court notes that defendant argues that claimant failed to set forth her items of damage or her injuries. Although claimant does not recite her specific personal injuries in her annexed claim, her affidavit specifies her injuries. Thus, the Court directs that claimant revise the claim annexed to her application and set forth her injuries. Claimant must then serve and file the claim in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims within 60 days of the filing of this decision and order.

Accordingly, claimant's motion M-71342 is granted.

July 10, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed February 2, 2006;

2. Affirmation of Michael J. Grace, Esq. dated January 24, 2006;

3. Affidavit of Shannon Richie sworn to January 26, 2006;

4. Proposed Claim;

5. Affidavit of Lance Robson sworn to February 1, 2006;

6. Claim of Kathleen Johnson, as Administratrix of the Estate of Amy Johnson;

7. Affirmation in Opposition of Michael W. Friedman dated March 29, 2006;

8. Affidavit of George Gaborow, P.E.

[1].Although the notice of motion seeks a nunc pro tunc order, claimant's affidavit seeks late claim relief.