New York State Court of Claims

New York State Court of Claims

STATE FARM/THOMSON v. THE STATE OF NEW YORK, #2006-033-187, Claim No. None, Motion No. M-70977


Synopsis



Case Information

UID:
2006-033-187
Claimant(s):
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY a/s/o QUINCY S. THOMSON
Claimant short name:
STATE FARM/THOMSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-70977
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Serpe, Andree & KaufmanBy: Cynthia G. Gamana, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 19, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by State Farm Mutual Automobile Insurance Company a/s/o Quincy S. Thomson (hereinafter "movant") due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on January 22, 2005.

Movant seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)[1]. Movant alleges defendant was negligent when a vehicle, owned by movant’s subrogor, was struck by defendant’s snowplow. The vehicle was parked at the end of a driveway at 277 DeForest Road North, Dix Hills, New York. Defendant’s vehicle was engaged in snowplowing the street during a blizzard on January 22, 2005. The wingplow of the snowplow struck the vehicle causing property damage.

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; (5) whether the movant has another available remedy; and (6) whether the claim appears to be meritorious. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

As an excuse, movant argues that it has been attempting to settle this with the New York State Department of Transportation directly. The Court finds that movant’s excuse is not meritorious. Movant’s excuse arises to law office failure, which is not excusable.

It appears that movant does not have an alternate remedy. Therefore, this factor favors movant.

The second, third and fourth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

Defendant’s employees were directly involved in the accident. In addition, movant contacted the New York State Department of Transportation in an attempt to settle this matter without bringing suit. While the Attorney General’s Office may not have been aware of this matter, the New York State Department of Transportation was fully aware of this matter.

Accordingly, these three factors favor movant.
While the presence or absence of any one factor is not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979), the most critical factor is the apparent merit of the proposed claim. A movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act § 10(6) weighed in favor of the movant’s request. The Court, based on movant’s papers and exhibits does not believe movant has a meritorious cause of action. Defendant’s employees were actively engaged in plowing snow. According to the police report (movant’s Exhibit B), the edge of the plow struck the vehicle which was at the end of the driveway. The affidavit of the driver (defendant’s Exhibit A) indicates the vehicle was completely covered with snow and was partially in the roadway.

The actions here do not give rise to liability on behalf of the defendant. Hazard vehicles, actively engaged in work on a roadway are exempt from the rules of the road and entitled to the same standard of care as emergency vehicles [Riley v County of Broome, 95 NY2d 455; see also State Farm Mutual Automobile Ins. Co. v City of Auburn, 5 Misc 3d 1016(A)]. The standard of care movant must prove and has failed to even allege, is recklessness.

Based on the foregoing, the Court concludes that the statutory factors do not favor movant’s application and therefore, denies permission to file a late claim.

June 19, 2006
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on movant’s motion: Notice of Motion dated November 14, 2005 and filed November 18, 2005; Affirmation of Cynthia G. Gamana, Esq. with annexed Exhibits A-D dated November 14, 2005 and filed November 18, 2005; Affirmation in Opposition of Todd A. Schall, Esq. with annexed Exhibit A dated January 17, 2006 and filed January 20, 2006; Reply Affirmation of Cynthia G. Gamana, Esq. with annexed Exhibit A dated January 31, 2006 and filed February 2, 2006.