New York State Court of Claims

New York State Court of Claims

ALLSTATE a/s/o REILLY v. THE STATE OF NEW YORK, #2006-033-219, Claim No. None, Motion No. M-72273


Synopsis



Case Information

UID:
2006-033-219
Claimant(s):
ALLSTATE INSURANCE COMPANY a/s/o CHRISTOPHER REILLY
Claimant short name:
ALLSTATE a/s/o REILLY
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-72273
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Carl S. Young & AssociatesBy: Carl S. Young, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Denis J. McElligott, 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 claim is brought by Allstate Insurance Company a/s/o Christopher Reilly (hereinafter "movant") for property damage due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on December 9, 2005, in the Town of Oyster Bay, New York.

Movant’s insured was operating his vehicle westbound on State Route 25A and was approaching State Route 106, in the Town of Oyster Bay, New York. According to movant’s insured, the light was red and he was rear ended by defendant’s snowplow. Defendant’s papers indicate that movant’s insured moved into the snowplow’s lane at the last moment and the snowplow was unable to stop prior to coming into contact with movant’s insured’s vehicle. Defendant’s vehicle was engaged in snowplow operations at the time of the accident.

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 was engaged in settlement negotiations with Cool Risk, the claim administrator for the State of New York. Movant’s excuse is completely devoid of any merit. Settlement negotiations would not prevent movant from serving a notice of intention to preserve its right to bring an action in the Court of Claims. This is not the first claim that movant has brought in this Court. Movant is fully aware of the jurisdictional requirements of the Court of Claims.

It appears that movant has an alternate remedy, that being the ability to sue the driver individually.

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 a work vehicle actively engaged in work upon the roadway. Therefore, recklessness, not negligence, must be proven by movant in order to prevail (Riley v County of Broome, 95 NY2d 455). Movant clearly states in its papers that defendant’s conduct was negligent. 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 September 11, 2006 and filed September 15, 2006; Affirmation of Carl S. Young, Esq. with annexed Exhibits A-C dated September 11, 2006 and filed September 15, 2006; Affidavit of Walter Jones sworn to August 2, 2006 and filed September 15, 2006; Affirmation in Opposition of Denis J. McElligott, Esq. with annexed Exhibits A-C dated October 4, 2006 and filed October 5, 2006; Reply Affirmation of Carl S. Young, Esq. with annexed Exhibits A-B dated October 17, 2006 and filed October 20, 2006.