New York State Court of Claims

New York State Court of Claims

PROGRESSIVE v. THE STATE OF NEW YORK, #2007-010-027, Claim No. NONE, Motion No. M-73331


Movant’s late claim application was denied. No appearance of merit shown.

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):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: Barry Kaufman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 15, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on claimant’s motion to serve and file a late claim:
Notice of Motion, Attorney’s Supporting Affidavit and Exhibits............................1

Affirmation in Opposition........................................................................................2

Progressive Insurance Company (Progressive) seeks to bring a late claim in the amount of $10,826.02 based upon the money it paid to its insured, Shawn M. Johnson, who sustained property damage to his car when it was struck by a marked police patrol car on January 21, 2006 at 11:35 a.m.. It is undisputed that, at the time of the accident, the police car had its lights and siren activated because it was on official duty in pursuit of another vehicle (Claimant’s Attorney’s Affidavit at ¶16; Claimant’s Ex. A). Two days after the incident, a letter was sent to the New York State Police by Progressive indicating that it insured the driver of the vehicle for the property damage incurred in the accident (Claimant’s Ex. B). Progressive sent a second letter approximately three weeks later alerting the New York State Police that its officer/driver may have been at fault for the accident (id.). Progressive sent a letter dated March 1, 2006, certified mail, return receipt requested, to the Claims Administrator of the State of New York Office of General Services (OGS) regarding its insured (the New York State Police) and informed OGS that Progressive was pursuing its rights of subrogation based upon its insured’s (Shawn M. Johnson) damage of $10,826.02 resulting from the accident (id.).

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered all six factors. It is well established that ignorance of the law is not a valid excuse for untimely service of a claim (see Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413). Here, Progressive has not offered any purported excuse for its failure to timely commence an action in this Court. The most significant factor in deciding a motion for leave to serve and file a late claim, is whether the proposed claim has an appearance of merit. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Here, Progressive must show an appearance of merit of its claim that the New York State Police patrol car was operated in a reckless manner which was a contributing cause of the accident.

The Vehicle and Traffic Law provides that a “police vehicle” (Vehicle and Traffic Law § 101) “pursuing an actual or suspected violator of the law” (Vehicle and Traffic Law § 114-b) is “an authorized emergency vehicle *** involved in an emergency operation” under Vehicle and Traffic Law § 1104(a) and is therefore, covered by the recklessness standard of Vehicle and Traffic Law § 1104(e). The recklessness standard requires more than a showing of lack of due care, which is associated with ordinary negligence (see Shephard v City of New York, 39 AD3d 842; Notorangelo v State of New York, 240 AD2d 716, 717). “[C]onduct which violates provisions of the Vehicle and Traffic Law relating to maximum rate of speed, lane-changing procedures, and other rules of the road does not, standing alone, render the operator of an emergency vehicle reckless or provide an independent basis for liability” (Turini v County of Suffolk, 8 AD3d 260, 262). It “requires evidence that ‘the actor 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, quoting Prosser and Keeton, Torts § 34 at 213 [5th ed]; see Szczerbiak v Pilat, 90 NY2d 553).

The Courts have applied the recklessness standard in cases where a police officer was driving a patrol car, engaged in an emergency operation, and had an accident with a civilian. In Szczerbiak v Pilat, supra, a police officer, driving to a nearby emergency situation, struck and killed a bicyclist in the road. Apparently, the officer had momentarily glanced down from the road to turn on his emergency lights and headlights, when he struck the bicyclist. The Court of Appeals held that the officer’s “ ‘momentary judgment lapse’ does not alone rise to the level of recklessness required of the driver of an emergency vehicle in order for liability to attach” (Szczerbiak v Pilat, supra at 557, quoting Saarinen v Kerr, supra at 502). In Turini v County of Suffolk, supra, a patrol car, with its lights and siren activated, was responding to a call of gun shots fired when it struck another vehicle killing plaintiff’s decedent. The Second Department granted summary judgment to the defendant dismissing the complaint on the ground that the officer’s conduct was not reckless. In Notorangelo v State of New York, supra, a police officer, responding to an accident scene at a speed of 55 to 70 mph, struck claimant’s car in the rear. The Second Department found that the officer’s conduct did not rise to the level of recklessness.

On the papers submitted, Progressive has failed to establish any appearance of merit that the marked New York State Police patrol car, with its lights and siren activated and on official duty in pursuit of another vehicle, was operated in a reckless manner. Accordingly, upon consideration of all six factors, claimant’s late claim application is DENIED (see Matter of Gallagher v State of New York, 236 AD2d 400 [claimant did not establish appearance of merit of proposed claim]).

To the extent that Progressive seeks an order deeming its letter dated March 1, 2006 to the OGS a Notice of Intention, the request is DENIED. Court of Claims Act §§10 and 11 are jurisdictional in nature and require that a Notice of Intention be timely served upon the New York State Attorney General, either personally or by certified mail, return receipt requested (see Finnerty v New York State Thruway Auth., 75 NY2d 721; Welch v State of New York, 286 AD2d 496, 497).

August 15, 2007
White Plains, New York

Judge of the Court of Claims