New York State Court of Claims

New York State Court of Claims

RICHARDS v. THE STATE OF NEW YORK, #2006-036-504, Claim No. None, Motion No. M-70768


Claimant must demonstrate a serious injury, in a claim covered by the no-fault law, in order for the court to find apparent merit within the meaning of section 10(6).

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:
Mallilo & GrossmanBy: Francesco Pomara, Jr., Esq.
Defendant’s attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Ellen Matowik, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 27, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant requests permission, pursuant to Court of Claims Act § 10(6), to file a late claim arising out of an automobile accident on November 4, 2004 involving claimant’s vehicle and a vehicle owned by the State Office of Mental Retardation and Developmental Disabilities (OMRDD) and driven by Lauren Thompkins, a State employee. [1] Claimant’s counsel states that he was retained prior to the expiration of the statutory 90-day period for timely serving and filing a claim or serving a notice of intention (Court of Claims Act § 10[3]), and counsel admits the failure to timely act on claimant’s behalf was due to an “oversight.”

Court of Claims Act § 10(6) grants the court the discretion to allow a claimant to interpose a late claim upon consideration of all relevant factors, including whether claimant’s delay was excusable, whether defendant had timely notice of and the timely opportunity to investigate the relevant facts and circumstances, whether defendant would suffer substantial prejudice from an order allowing late filing, whether the proposed claim appears meritorious and whether claimant has an alternate remedy.

Defendant opposes the motion but references only two of the six statutory factors, alleging that claimant has no reasonable excuse for his delay and that the proposed claim does not appear meritorious.

With respect to the factors not addressed by defendant, the court finds that the timely notice, opportunity to investigate and lack of prejudice factors all weigh in favor of granting the motion[2], and that the alternate remedy factor weighs against granting the motion in that claimant may pursue his action directly against the allegedly negligent driver without bringing an action against the State in the Court of Claims (see Morell v Balasubramanian, 70 NY2d 297 [1987]).

Claimant’s lack of a reasonable excuse for his delay also weighs against granting the motion.

The deciding factor, as in so many applications for permission to late file, is whether claimant has presented an apparently meritorious claim (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977], Weisberg, J.). Defendant raises two distinct reasons why the court should conclude that claimant has not met his burden in demonstrating the existence of a potentially meritorious claim – that the proposed claim fails to comply with Court of Claims Act § 11(b) and that claimant has not shown that he suffered a “serious injury” as is required by Insurance Law §5102(d). While the first of these contentions is without merit, the assertion that claimant has not met his burden because there is no indication he suffered a serious injury is correct.

Initially, defendant confuses the burden imposed on a putative claimant who seeks an exercise of the court’s discretion pursuant to § 10(6) with the standards applicable to a timely-interposed claim as set forth in § 11(b), which sets forth the required contents of a claim. The purpose of the § 11(b) requirements is to provide the State with notice, within the applicable period as set forth in § 10, of the facts and circumstances underlying the claim so that a prompt investigation may be performed (Lepkowski v State of New York, 1 NY3d 201 [2003];
Klos v State of New York, 19 AD3d 1173 [2005], affirming UID No. 2004-013-015; Heisler v State of New York, 78 AD2d 767 [1980]
). A claimant seeking permission to late file, on the other hand, by definition, has not served a document complying with §11 (b) which affords the opportunity for a prompt investigation. The required analysis under§10(6) is aimed at determining whether the court should exercise its discretion and allow the claim to proceed despite claimant’s failure to have timely served a proper document.

Thus, defense counsel’s statement with respect to the information contained in the Police Accident Report – “defendant is not required to go beyond the four corners of the claim in order to ascertain information which should have been provided in the claim” (Affirmation in Opposition, ¶ 6) – is inapposite in the context of a late filing motion. Unlike a motion addressed to the sufficiency of a timely claim, on a late filing motion the court is required to consider all of the probative evidence, including affidavits, exhibits, sometimes submissions from expert witnesses, in evaluating whether the proposed claim appears meritorious.

Defendant’s contention that the motion should be denied because claimant has not demonstrated a serious injury is correct, however (see generally Licari v Elliott, 57 NY2d 230 [1982]). Absent some basis for the court to agree with claimant’s contention that he has suffered a serious injury within the meaning of Insurance Law §5102(d), it cannot be concluded that there is reasonable cause to believe claimant has a meritorious cause of action (Edwards v State of New York, 119 Misc 2d 355 [1983], Weisberg, J.: “there is no way to determine from the papers before us whether the threshold requirements for a cause of action under the No-Fault Law have been met. Therefore, the claim cannot be said to have merit and it would be an abuse of discretion to grant the motion” [id., 356]; see also McDowell v State of New York, Ct Cl, Minarik, J., decision and order dated May 17, 2002, UID No. 2002-031-018).

Here, claimant states he sought medical treatment two days after the accident for neck, back and shoulder pain, was treated by Dr. Paul Raphael (physical therapy and pain medication), had some MRIs done, and still experiences “pain and limitations in regard to my shoulder and the function of my neck and back” (Exhibit “B” to Notice of Motion, ¶ 4). Two MRI reports were submitted. The first, of claimant’s right shoulder, concludes “Impression: Increased signal in the musculotendinous segment of the supraspinatus tendon consistent with a sprain, strain or intrasubstance tear”; and the second, of claimant’s lumbosacral spine, concludes “Impression: Moderate to severe spinal stenosis from L2 through S1. Posterior disc herniations at L4 and at L5 and L5-S1 impinging on the anterior aspect of the spinal canal and nerve roots bilaterally” (Exhibit “C” to Notice of Motion). An affirmation from the physician who performed the MRIs restates those conclusions (id.).

There is nothing before the court from which it could be concluded that claimant suffered a serious injury in the subject accident as required by Insurance Law §5102(d)[3]. Accordingly, the court cannot find that the proposed claim appears meritorious.

Based on the foregoing, the court finds that it would not be a proper exercise of discretion to allow the claim to proceed and the motion is therefore denied.

March 27, 2006
New York, New York

Judge of the Court of Claims

[1].The court read and considered the following papers: Notice of Motion, Affirmation and Exhibits, Affirmation in Opposition.
[2].See, e.g., Wolf v State of New York (140 AD2d 692 [1988]): “The documentation contained in the record, which includes a police accident report and a New York State Department of Motor Vehicles MV-104 form, provides further support for the conclusion that the State had acquired knowledge of the essential facts giving rise to the claim and that it had an adequate opportunity to conduct an investigation of the incident . . . This determination is buttressed by the fact that an employee of the State was not only present at the accident scene but was involved in the collision itself.” The same considerations apply here (see Exhibit “A” to Notice of Motion, Police Accident Report).
[3]. “ ‘Serious injury’ means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”