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). 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,
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
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
In his Decision and Order, Judge Patti
determined that a correction officer is deemed a “peace officer”
(Criminal Procedure Law § 2.10) 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
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.