New York State Court of Claims

New York State Court of Claims

USAA CASUALTY INSURANCE COMPANY v. THE STATE OF NEW YORK, #2006-033-218, Claim No. None, Motion No. M-72089


Synopsis



Case Information

UID:
2006-033-218
Claimant(s):
USAA CASUALTY INSURANCE COMPANY a/s/o ANNE GILROY
Claimant short name:
USAA CASUALTY INSURANCE COMPANY
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-72089
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Serlin & Serlin, Esqs.By: Gerald M. Serlin, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 28, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by USAA Casualty Insurance Company a/s/o Anne Gilroy (hereinafter "movant") due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on June 26, 2005.

Movant’s insured was operating her vehicle at the intersection of Hulse Landing Road and Sound Avenue, Town of Riverhead, New York. The intersection is controlled by a traffic light. Movant’s insured had a green light going into the intersection when it collided with defendant’s vehicle. Defendant’s vehicle was a NYS Park Police vehicle en route to an emergency in “emergency mode” (movant’s Exhibit 1).

Movant seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)[1].

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 is a Texas based insurance company, representing a New Hampshire based insured, and was unaware of the New York requirements of starting an action. Movant’s excuse is completely devoid of any merit. Ignorance of the laws of New York by an insurance company doing business throughout the nation cannot be an excuse.

It appears that movant has an alternate remedy, that being the ability to sue the officer directly.

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 finds that these 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 the Court of Claims Act § 10(6) weighed in favor of the movant’s request.
The Court, based on movant’s papers and exhibits, finds that there is no merit to movant’s application. Movant seeks property damages based upon alleged negligence of defendant’s driver. There is no dispute, however, that defendant’s vehicle was an emergency vehicle in “emergency mode”. Therefore, recklessness, not negligence, must be proven by movant in order to prevail. The Court finds, based upon movant’s papers, that defendant’s conduct does not rise to the level of 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.


December 28, 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 July 31, 2006 and filed August 4, 2006; Affirmation of Gerald M. Serlin, Esq. with annexed Exhibits 1-3 dated July 31, 2006 and filed August 4, 2006; Affidavit of Catherine F. Cole sworn to June 30, 2006 and filed August 4, 2006; Affirmation in Opposition of Todd A. Schall, Esq. dated September 6, 2006 and filed September 8, 2006.