New York State Court of Claims

New York State Court of Claims

KOCH v. THE STATE OF NEW YORK, #2007-010-028, Claim No. NONE, Motion No. M-71547


Synopsis


Claimant’s late claim application is granted.

Case Information

UID:
2007-010-028
Claimant(s):
CATHERINE M. KOCH
Claimant short name:
KOCH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-71547
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
WORBY, GRONER, EDELMAN, LLPBy: Michael L. Taub, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 10, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-7 were read and considered and oral argument was heard by the Court on claimant’s motion for leave to serve and file a late claim:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits........................1

Supplementary Affidavit and Exhibits........................................................................2

Attorney’s Affirmation in Opposition and Exhibit...................................................3

Engineer’s Affidavit in Opposition and Exhibit..........................................................4

Attorney’s Reply Affirmation...................................................................................5

Attorney’s Supplemental Reply Affirmation..............................................................6

Engineer’s Supplemental Affidavit...........................................................................7

Claimant contends that, on December 24, 2004, she was walking on the sidewalk on the northwest end of the overpass of the Cross County Parkway at Gramatan Avenue and Centre Street near parking meter #132 in Mount Vernon, when she fell due to a large crack on the sidewalk and sustained serious injuries. Claimant commenced actions against the City of Mount Vernon and the County of Westchester; however claimant did not timely commence an action against the State.

In April 2006, claimant brought a late claim application in the Court of Claims. The State denied ownership and any responsibility for maintenance of the accident site. The motion was adjourned on consent of the parties for the purposes of further investigations and depositions conducted by claimant’s counsel in an attempt to clarify ownership of the sidewalk. Claimant’s counsel anticipated that it would be established that the City of Mount Vernon was the owner and that claimant could then withdraw her application for leave to serve and file a late claim against the State. However, that information has not been forthcoming.

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 the above six factors. Claimant has not presented a valid excuse for her nearly two-year delay in bringing her late claim application (see Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854 [error in filing claim against wrong party was not excusable for delay]; Gatti v State of New York, 90 AD2d 840 [mistaken belief that town and not State owned the road was not reasonable excuse for delay]). Additionally, claimant’s delay substantially prejudiced defendant because the State was not afforded the opportunity to timely investigate the circumstances underlying the claim (see Nicometti v State of New York, 144 AD2d 1036 [delay was inexcusable and prejudiced the State because it had not investigated the accident]).

Most significant in this case is the lack of appearance of merit of the proposed claim. 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 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). “A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action” (Witko v State of New York, 212 AD2d 889, 891). Merely submitting a photograph of the alleged accident site does not establish the appearance of merit of the proposed claim (see Matter of Gallagher v State of New York, 236 AD2d 400 [nine-month delay caused State substantial prejudice and claimant did not establish appearance of merit merely by submitting a photograph of the accident site]). Here, defendant has submitted two affidavits of the Regional Bridge Maintenance Engineer for the New York State Department of Transportation, Region 8, with supporting data indicating that the State does not own or maintain the sidewalk.

Finally, claimant has an alternative remedy against the entities which claimant is suing in Supreme Court, i.e. the City of Mount Vernon and the County of Westchester (see Nicometti v State of New York, supra).

Accordingly, upon weighing all the factors, claimant’s motion for leave to file a late claim is DENIED (see Broncati v State of New York, 288 AD2d 172; Qing Liu v City Univ. of N.Y., 262 AD2d 473).


August 10, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims