New York State Court of Claims

New York State Court of Claims

PACHECO v. THE STATE OF NEW YORK, #2007-009-044, Claim No. 113861, Motion Nos. M-73766, CM-73877


Synopsis


Defendant’s motion to dismiss based upon untimely service was granted, and claimant’s motion for late claim relief was denied, with the Court finding that claimant had failed to establish the appearance of a meritorious claim. The Court determined that the “reckless disregard” standard of Vehicle and Traffic Law § 1104(e) should apply in this situation.

Case Information

UID:
2007-009-044
Claimant(s):
WILLIAM PACHECO
1 1.The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
PACHECO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113861
Motion number(s):
M-73766
Cross-motion number(s):
CM-73877
Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
DAVID SEGAL, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Michael R. O’Neill, Esq.,
Assistant Attorney General
Of Counsel.
Law Offices of Joseph W. Buttridge
BY: Anthony Rotondi, Esq.,Of Counsel.
Third-party defendant’s attorney:

Signature date:
January 3, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought a motion (M-73766) seeking an order dismissing the claim based upon untimely service. Claimant has responded with a cross-motion (CM-73877), not only in opposition to the motion to dismiss, but also seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation, with Exhibit (M-73766) 1,2


Memorandum of Law (M-73766) 3

Notice of Cross-Motion, Claimant’s Affidavit in Support, Affirmation of David Segal, Esq., with Exhibits (CM-73877) 4,5,6


Reply Affirmation (M-73766/CM-73877) 7

In his claim, claimant alleges that on December 7, 2006, while he was being transported with other inmates from Watertown Correctional Facility to Gouverneur Correctional Facility, the van in which he was being transported was struck in the rear by another vehicle, causing the van to hit a guardrail and another vehicle, causing personal injuries to claimant. Claimant further alleges that he was handcuffed and shackled at the time of this accident. In his affidavit submitted with his cross-motion (see Item 5) claimant further indicates that it was snowing at the time of this accident, and that the driver of the van which struck claimant’s vehicle was arrested for driving while intoxicated. Although not set forth in his claim, claimant further states that neither he nor any of the other inmates who were being transported had seatbelts on at the time of the accident. The claim is based upon allegations of negligence, specifically alleging that the driver of the vehicle transporting the inmates operated the van in a careless and negligent manner.

A claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention is served upon the Attorney General within such 90 days (Court of Claims Act § 10[3]). If a notice of intention is so served upon the Attorney General, the claim must then be served and filed within two years from the date of accrual.

In this claim, there is no indication whatsoever that claimant ever served a notice of intention upon the Attorney General. The claim was filed with the Clerk of the Court of Claims on June 18, 2007. According to the copy of the claim attached to defendant’s moving papers (Exhibit A to Items 1,2), the claim appears to have been served upon the Attorney General on June 13, 2007.

Since this claim accrued on the date of the motor vehicle accident, December 7, 2006, it is apparent that the claim was not served within 90 days of accrual, as required by Court of Claims Act § 10(3).

The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State and therefore they must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

This Court may not cure or overlook defects in the time and/or manner of service and filing, assuming that such defenses are properly raised by the defendant either in its responsive pleading or by a motion to dismiss made prior to service of said responsive pleading, as required by Court of Claims Act § 11(c). In this case, since defendant properly raised the jurisdictional defect in this pre-answer motion, this claim must be dismissed.

Probably realizing that this claim was subject to dismissal, claimant in his cross-motion seeks permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The Court notes that claimant failed to attach a proposed claim to his moving papers as required by Court of Claims Act § 10(6). The Court assumes that claimant is seeking permission to serve and file a late claim identical to the claim which is the subject of defendant’s motion to dismiss herein, and therefore, for purposes of this cross-motion, will treat the filed claim as the proposed claim.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim 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 claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to excuse, claimant states in his supporting affidavit that he initially commenced an action, pro se, in the United States District Court in May 2007, and that he was unaware that the Court of Claims was the proper forum until he consulted with Mr. Segal in June 2007. It is well settled, however, that ignorance of the law is not an acceptable excuse for the failure to timely serve and file a claim (Matter of E.K. v State of New York, 235 AD2d 540; Matter of Sandlin v State of New York, 294 AD2d 723, lv dismissed, 99 NY2d 589).

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. For purposes of this application, the Court assumes that an investigation was conducted, and an accident report was filed, following the accident of December 7, 2006. Additionally, claimant states in his supporting affidavit that he was transported by ambulance to a hospital in Watertown, and records must therefore exist to document the medical treatment provided to claimant immediately following this accident. Additional medical treatment provided at correctional facilities should also be well-documented.

The Court also notes that defendant’s attorney has not addressed any of these factors in his reply affirmation (see Item 7).

Accordingly, based on the above, the Court finds that the State had actual notice of a potential claim, as well as an opportunity to investigate the circumstances underlying the claim, and therefore would not suffer any substantial prejudice should it have to defend this claim.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If a claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

With regard to this factor, defendant’s attorney contends that the van, which was transporting claimant, was being operated as an “authorized emergency vehicle”, and that the actions of the operator of the vehicle should therefore be considered under the standards set forth in Vehicle and Traffic Law § 1104(e). Defendant’s attorney refers to a prior decision by my learned colleague, Hon. Philip J. Patti, who addressed this very issue in a late claim application involving substantially similar facts.[2] In his Decision and Order, Judge Patti determined that a correction officer is deemed a “peace officer” (Criminal Procedure Law § 2.10[25]) and is therefore a “police officer” (Vehicle and Traffic Law § 132). The vehicle operated by the correction officer is therefore considered a “police vehicle” (Vehicle and Traffic Law § 132-a) which was involved in an “emergency operation” (Vehicle and Traffic Law § 114-b). As a result, Judge Patti determined that the vehicle operated by a correction officer used for the purpose of transporting prison inmates was an “authorized emergency vehicle” (Vehicle and Traffic Law § 1104).

Based on these findings, which are adopted by this Court, liability may not be imposed under the alleged facts forming the basis of this potential claim unless the claimant can establish that the operator of the vehicle acted with “reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104[e]) (Szczerbiak v Pilat, 90 NY2d 553).

As defined by the Court of Appeals, in order to establish recklessness, it must be established that “ ‘the actor [in this case the driver of the van] has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (Saarinen v Kerr, 84 NY2d 494, 501, citing Prosser and Keeton, Torts § 34, at 213[5th ed]).

In this case, without providing any specifics, claimant has alleged that the driver of the van operated the vehicle in a negligent and careless manner. There are no allegations of reckless conduct set forth in the proposed claim. Furthermore, based upon the allegations set forth in the proposed claim (the van transporting the inmates was struck from behind by another vehicle, whose driver was then charged with driving while intoxicated), the Court finds it difficult to ascertain any supposed acts of negligence, let alone conduct which would rise to the level of recklessness. Based on the foregoing, the Court finds that claimant has failed to establish the appearance of a meritorious claim, in that no allegations of reckless conduct have been asserted.

The Court also finds that claimant may have another available remedy against the driver (as well as the owner) of the vehicle which collided with the van in which he was a passenger.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981).

Based upon the foregoing, the Court finds that claimant’s cross-motion seeking permission to serve and file a late claim is denied.

Therefore, it is

ORDERED, that Motion No. M-73766 is hereby GRANTED; and it is further

ORDERED, that Claim No. 113861 is hereby DISMISSED; and it is further

ORDERED, that Cross-Motion No. CM-73877 seeking permission to serve and file a late claim is hereby DENIED.


January 3, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[2]. Heckstall v State of New York, Claim No. None, Motion No. M-66939, dated April 26, 2004, UID No. 2004-013-021. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.