Attorney’s Reply Affirmation and
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
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
(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