New York State Court of Claims

New York State Court of Claims

Mandigo v. THE STATE OF NEW YORK, #2006-038-503, , Motion No. M-72249


Synopsis


Motion for permission to file late claim granted,

Case Information

UID:
2006-038-503
Claimant(s):
GREGORY MANDIGO
1 1.The caption has been amended, sua sponte, to reflect the only properly named defendant.
Claimant short name:
Mandigo
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended, sua sponte, to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72249
Cross-motion number(s):

Judge:
W. Brooks DeBow
Claimant’s attorney:
Jeffrey E. Marion, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer, Attorney General of the State of New YorkBy: Frederick H. McGown, III, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 28, 2006
City:
Albany, New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Gregory Mandigo (“movant”) moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). The State opposes the motion. The motion, filed on September 8, 2006, includes a proposed claim against the State of New York, Adirondack State Park, and the New York State Department of Transportation. It is alleged that on June 6, 2005, movant lost control of the motorcycle he was operating due to defects in the roadway at a specific location of State Route 418 in the Town of Warrensburg, New York. Movant, a resident of Ontario, Canada, alleges that he suffered catastrophic injuries, including paraplegia, when his motorcycle encountered a groove or puddle in the roadway, causing him to lose control of the motorcycle, and crash into a wooden post that was part of a guardrail.

Pursuant to Court of Claims Act § 10 (3), movant was required to file and serve upon the Attorney General the claim, or serve a written notice of intention to do so, within 90 days after the accrual of the claim, on June 6, 2005. The instant motion was filed on September 8, 2006, approximately one year after the expiration of the 90-day period. There is no dispute that the proposed claim is within its statute of limitations (see CPLR 214 [5]).

In deciding a motion to file a late claim, the Court must consider under Court of Claims Act § 10 (6) “whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.” The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV, Inc. v New York State Emp. Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court. The Court’s consideration of these factors will be addressed seriatim.

Movant’s papers set forth facts addressed to the reasons for not filing a claim until fourteen months after the accident. Initially, it is noted that an excuse must be offered with respect to only the 90-day period after accrual of the claim (see Plate v State of New York, 92 Misc 2d 1033, 1040 [Ct Cl 1978]; Walach v State of New York, 91Misc 2d 167, 173-174 [Ct Cl 1977], aff’d 69 AD2d 1015 [4th Dept 1979]). Any additional delay in moving for permission to file a late claim may be considered on the issue of prejudice (see Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]; Walach v State of New York, supra). Movant affirms that he was hospitalized in a drug induced coma for more than two weeks after the accident, and that he remained in the intensive care unit thereafter. Movant was not discharged from the hospital until August 9, 2005, more than two months after the accident. At that time, he was transferred to a rehabilitation facility where he remained until November 3, 2005. Movant’s serious injuries and his continuous confinement, treatment and rehabilitation throughout the 90-day period set forth in Court of Claims Act § 10 (3) provide a reasonable excuse for the delay in filing a claim (see DeOlden v State of New York, 91 AD2d 1057 [2d Dept 1983]; Cole v State of New York, supra; Stabile v State of New York, 12 AD2d 698 [3d Dept 1960]).

Whether the State had notice of the essential facts underlying the proposed claim, whether it had an opportunity to investigate, and whether commencement of the claim beyond the allowable time period has resulted in substantial prejudice to the State are related factors that may be addressed together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Here, the State did not have notice of the accident, and hence, lacked the opportunity to investigate it. The accident report completed by a State Trooper [see Movant’s Exhibit C], does not, in and of itself, constitute notice to the State alerting it to the need to investigate the accident (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 7-8 [Ct Cl 1977]; cf. Wolf v State of New York, 140 AD2d 692 [2d Dept 1988]). In opposition to the motion, the State asserts that there is “obvious harm” (McGown Affirmation, ¶ 14) flowing from the delay of more than a year since the accident and the consequent delay in an opportunity to investigate. Although the State argues that there is doubt as to the exact location of the accident, that same doubt would have existed within the 90-day period. Therefore, the Court is unable to discern substantial prejudice to the State due to claimant’s failure to file the claim within the 90-day period (see Court of Claims Act § 10 [6]).

Whether a claim has the appearance of merit is perhaps the weightiest factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra at 1036), yet a potential litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., supra at 10). To establish the merit of a proposed late claim, movant need not demonstrate a likelihood that he will prevail on his claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., supra at 11). The State does not argue that the proposed claim is patently groundless, frivolous or legally defective. It argues, however, that it has been unable to determine the exact location of the accident. This does not address whether movant has a cause of action; rather, it is a flaw in the proposed claim that may be resolved during discovery. Relying on Aronson v State of New York (UID # 2002-028-075, Motion # M-65339, Sise, J., Dec. 27, 2002), the State further contends that the motion is unsupported by a required expert affidavit that would establish the merit of the claim. Aronson, however, is distinguishable as that decision involved a proposed claim alleging a defective design of a roadway (see City of Utica v State of New York, UID # 2004-028-568, Motion # M-68126, Sise, P.J., Nov. 1, 2004), whereas the proposed claim that is the subject of this motion alleges negligent maintenance. Movant alleges that there was a defective condition in the roadway – a groove or other unremedied defect that allowed water to pool – in sufficient detail to establish reasonable cause to believe that a cause of action for negligent maintenance of the highway exists. Whether movant will be able to prove the element of actual or constructive notice of the alleged defect remains another issue to be explored during discovery, but the State’s argument on the issue of notice does not negate reasonable cause to believe that a cause of action exists.

Finally, nothing in the papers suggests that movant has any other available remedy. Movant claims the accident occurred solely because of a defect in the highway, and does not allege that it was caused by another motorist or a defect in his motorcycle, and thus, a proceeding in this Court appears to be his only available remedy.

In sum, movant has submitted a reasonable excuse for his failure to take action within the 90-day period of Court of Claims Act § 10 (3). While in many cases a delay of nearly a year thereafter in moving for permission to file a late claim might cause substantial prejudice to the State, such prejudice does not appear in this matter. Establishing the specific location of movant’s accident may pose difficulties for both movant and the State, but this Court, having weighed all the factors set forth in Court of Claims Act § 10 (6) concludes that movant should have the opportunity to pursue his claim.

Accordingly, the motion is granted. Movant may serve and file his claim – revised to name the State of New York as the only defendant and to include the sum claimed (see Court of Claims Act § 11 [b]) – within 30 days of the filing date of this decision and order, in accordance with the applicable provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, including payment of the filing fee.



November 28, 2006
Albany, New York, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers Considered:


(1) Notice of Motion, dated September 6, 2006;

(2) Affidavit of Gregory Mandigo, sworn to September 6, 2006, with exhibits A-B;

(3) Affidavit of Louann Marshall, sworn to September 6, 2006;

(4) Affidavit of Jeffrey E. Marion, Esq., sworn to September 6, 2006, with exhibits C-D;

(5) Affirmation of Frederick H. McGown, III, Esq., dated September 27, 2006;

(6) Affidavit of Jason A. Penge, P.E., sworn to September 26, 2006, with exhibits A-C.