New York State Court of Claims

New York State Court of Claims

MURPHY v. THE STATE OF NEW YORK, #2006-037-005, , Motion No. M-71194


Case Information

CHERYL MURPHY, Individually, and as Administrator of the Estate of Donna Reichert, Deceased, BRIANNA REICHERT, and JUSTIN MURPHY, infants, and as beneficiaries of the Estate of Donna Reichert
1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Cook & Gawronski, P.C.By: Joseph A. Agro, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Gregory P. Miller, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 14, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on Movant’s motion for permission to late file a claim pursuant to § 10 (6) of the Court of Claims Act:
1. Movant’s Notice of Motion dated January 19, 2006 and filed January 20, 2006, with

supporting affidavit of Joseph A. Agro, Esq. sworn to January 19, 2006, with attached Exhibits A-H;

2. Affidavit in Opposition of Assistant Attorney General Gregory P. Miller sworn to
March 3, 2006 and filed March 7, 2006, with attached Exhibits A-E.

Cheryl Murphy (Movant), individually and as Administrator of the Estate of Donna Reichert (decedent) seeks permission to late file a claim against Defendant for the wrongful death of decedent allegedly resulting from the negligent maintenance of State Route 16 in the Town of Sardinia, Erie County during a snowstorm. Movant received limited letters of administration for her daughter’s estate on July 9, 2004.

According to the proposed claim, on January 28, 2004, at approximately 9:30 A.M., decedent was the operator of an automobile traveling southbound on State Route 16 at or near its intersection with Hand Road, in the Town of Sardinia. Decedent lost control of her vehicle, crossed over into the opposite lane and collided with a northbound tractor-trailer. The decedent was pronounced dead at the scene.

Pursuant to Court of Claims Act § 10 (2), a claim against the State for damages for wrongful death must be served and filed within ninety days of the appointment of the decedent’s personal representative, unless a notice of intention to file a claim is served within such time, in which event the claim must be filed within two years of the date of death. Accordingly, this claim was required to be filed or preserved within ninety days of July 9, 2004, which Movant failed to do.

Court of Claims Act § 10 (6) grants the court discretion to permit the late filing of a claim upon consideration of all relevant factors, including whether: (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the claim appears to be meritorious; (5) substantial prejudice to the State resulted from the failure to timely file and serve upon the Attorney General a timely claim or notice of intention to file; and (6) any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]; Scarver v State of New York, 233 AD2d 858 [1996]).

Counsel for Movant alleges that the delay in filing and serving a claim is excusable because the attorney originally retained by Movant to file and prosecute a claim fell ill and eventually died before doing so. While the Court is sympathetic to the circumstances related to the illness and death of Movant’s retained counsel, this does not present a legally acceptable excuse since law office failure and ignorance of the law are not adequate excuses for failure to file and serve a claim within the ninety day statutory period (Sevillia v State of New York, 91 AD2d 792 [1982]; Almedia v State of New York, 70 AD2d 712 [1979]). Thus, this factor weighs in favor of Defendant.

The three factors of notice, opportunity to investigate and prejudice are inextricably intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movant alleges and Defendant acknowledges that an extensive investigation of this fatal accident was conducted by the New York State Police (see Movant’s Exhibits D-F) and, although the New York State Department of Transportation (DOT) did not have notification of this claim, it has access to the New York State Police investigation and the records DOT maintains regarding snow and ice maintenance (see Defendant’s Exhibits C-E). Since Defendant concedes that it had knowledge of the facts underlying the claim within the statutory period and has not been prejudiced, these factors weigh in favor of Movant.

The next and often considered the most decisive factor is merit, as it would be futile to allow a meritless claim to proceed (see Dippolito v State of New York, 192 Misc 2d 395 [2002]; Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1 [1977]). Movant has the burden of proving that the proposed claim has the appearance of merit (Nyberg v State of New York, 154 Misc 2d 199 [1992]). The general rule is that a proposed claim will be considered as demonstrating the appearance of merit if it is not patently groundless, frivolous, or legally defective; and, upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Dippolito, supra at 396-397; Matter of Santana, supra at 11).

The proposed claim sets forth a cause of action for common law negligence based on the alleged failure of DOT to remove snow and ice from the roadway during a snowstorm which caused decedent to lose control of her vehicle resulting in the accident. Defendant counters that while there was a snowstorm on the day of the accident which resulted in hazardous driving conditions, the accident occurred during a storm in progress and various cases are cited for the proposition that a landowner has a reasonable time after the cessation of the storm to address snow or ice conditions (see e.g. LaDue v G & A Group, 241 AD2d 791[1997]; Freund v State of New York, 137 AD2d 908 [1988], lv denied 72 NY2d 802 [1988]; Roche v State of New York, Ct Cl, Corbett, Jr., J., October 29, 2001, Claim No. 85963, UID # 2001-005-007).[2] While this is a significant issue and one which may prove to be dispositive of this claim, it is not necessary for purposes of this application to prove or establish that the storm in progress doctrine does not apply. Such a determination must await trial or a summary judgment motion where it is appropriate to adjudicate the actual merits of a particular claim (Matter of Santana, supra at 11-12). The Court finds that the proposed claim raises sufficient issues of fact to meet the standard of the appearance of merit. Accordingly, the merit factor weighs in favor of granting the application to late file a claim.

With respect to the final factor to be considered, Movant alleges that there is no other remedy because decedent was caused to lose control of her vehicle and cross over into oncoming traffic by the accumulation of snow and ice on the highway which was the proximate cause of her death. The absence of an alternative remedy weighs in favor of Movant.

Upon balancing all of the factors set forth in § 10 (6) of the Court of Claims Act, the Court concludes that these factors weigh in favor of Movant’s application to late file a claim which comports with the requirements of § 11 (b) of the Court of Claims Act and names only the State of New York as Defendant.

Accordingly, it is

ORDERED, that the motion to late file a claim is granted and the claim shall be filed and served in accordance with the requirements of §§ 10, 11 and 11-a of the Court of Claims Act within 45 days of the filing of this decision and order.

March 14, 2006
Buffalo, New York

Judge of the Court of Claims

[2].This and other unreported Court of Claims decisions may be found at the Court of Claims web site at