New York State Court of Claims

New York State Court of Claims

WEINER v. THE STATE OF NEW YORK, #2007-010-029, Claim No. NONE, Motion No. M-73003


Movant’s motion to serve and file a late claim is granted. An appearance of merit was 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:
DEREN, GENETT & MACREERYBy: John Brian Macreery
Defendant’s attorney:
Attorney General for the State of New YorkBy: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 22, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on movant’s motion for an order deeming his Notice of Intention a claim or for leave to serve and file a late claim:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits........................1

Attorney’s Affirmation in Opposition and Exhibits...................................................2

Attorney’s Reply Affirmation and Exhibits..............................................................3

The proposed claim alleges that, on July 16, 2004, Jason Weiner was a front seat passenger in a car driven by Eric A. Cueva on State Route 115, Salt Point Turnpike in the Town of Pleasant Valley, Dutchess County. Approximately 300 feet west of Van Wagner Road, the car went off the roadway and struck a tree. The driver was killed and Weiner sustained serious injuries.[1] Weiner commenced an action in New York State Supreme Court against Susan A. Cueva, the owner of the vehicle. The case settled. A Notice of Intention was served upon the State; however it was untimely because it was served 91 days after accrual instead of the mandated 90 days after accrual[2] (Movant’s Exs. 1, 2). In September 2006, movant retained new counsel (Movant’s Ex. 3), who brings this application on Weiner’s behalf.

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 movant has another available remedy.

The Court has considered the above six factors. While the movant has not presented a valid excuse for his delay (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]), the presence or absence of any one factor is not determinative (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

The most significant factor to be considered is the 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). Here, the movant has established an appearance of merit. Notably, the papers submitted include an affidavit of a professional engineer who reviewed the police accident reports, visited the accident site, and reviewed the New York State Department of Transportation Design Manual Provisions and Highway Maintenance Guideline Provisions regarding shoulder maintenance. The engineer took photographs and measurements at the accident site and observed that the roadway was three inches above the shoulder. He opined that this was a departure from the standards and a proximate cause of the accident. An affidavit of the movant, along with his medical records, was also submitted. Movant also submitted the affidavit of a homeowner who has owned property on both sides of the area of roadway in issue for more than 20 years and has observed numerous accidents in the area.

Upon consideration of all the factors, including the State’s failure to show that the delay substantially prejudiced defendant and that the State was not afforded the opportunity to timely investigate the circumstances underlying the claim, the Court finds that movant has made a sufficient showing to warrant granting his application. Accordingly, movant shall, within 45 days of this filed-stamped Decision and Order, serve and file a claim in the same form and substance as the proposed claim, and in accordance with the Court of Claims Act. It is noted that the appearance of merit is limited to this Court’s ruling on the motion and that a heavier burden of proof rests upon movant to prevail at trial.

August 22, 2007
White Plains, New York

Judge of the Court of Claims

[1]. A rear seat passenger, James DeNardo, also sustained injuries and has an action pending in this Court against the State (Claim No. 111445). Weiner was deposed as a non-party witness in that action (Movant’s Ex. 5).
[2]. Since the Notice of Intention was untimely, it is jurisdictionally defective and cannot be deemed a claim; accordingly that branch of movant’s application is DENIED.