New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2007-010-054, Claim No. NONE, Motion No. M-73641


Synopsis


Claimant’s motion for leave to serve and file a late claim is denied.

Case Information

UID:
2007-010-054
Claimant(s):
WILLIAM J. LOPEZ
1 1.The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
LOPEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-73641
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
PHILLIPS & MILLMAN, LLPBy: Jeffrey T. Millman, 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:
November 15, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 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:[2]
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits........................1

Affirmation in Opposition and Exhibit.....................................................................2

Reply Affirmation.....................................................................................................3
Background

Claim No. 113602
Claim No. 113602 alleges that at approximately 6:30 p.m. on February 10, 2007, claimant, William J. Lopez,[3] was walking across State Route 9W, approximately 200 feet south of Railroad Avenue, in the Village of West Haverstraw, Rockland County, when he was struck by a motor vehicle proceeding westbound on 9W (Claimant’s Motion Papers, Ex. B). Claimant was purportedly hospitalized due to his injuries, although it is unclear from claimant’s motion papers as to when claimant was admitted to the hospital and claimant’s condition at the time of his admission. Indeed, claimant submits only a Helen Hayes Hospital record indicating an admission date of March 12, 2007, more than one month post-accident (Claimant’s Motion Papers, Ex. A). The Helen Hayes Hospital record refers to claimant’s hospitalization at Westchester County Medical Center (WCMC); however the record does not specify any dates for that hospitalization, nor does claimant include any records from WCMC indicating when he was admitted, his condition, his treatment or the conditions and date of his release.
Court Conference
On June 11, 2007, the parties appeared at a Court scheduled conference regarding Claim No. 113602 which failed to set forth a total sum claimed as mandated by Court of Claims Act §11(b). The conference was scheduled in the wake of the recent Court of Appeals decision of March 22, 2007, Kolnacki v State of New York, 8 NY3d 277, which held that the failure to set forth a total sum in a claim is a jurisdictional defect warranting dismissal of the claim. Acknowledging the impact of the recent Court of Appeals decision on Claim No. 113602, claimant’s attorney endeavored to proceed with a late claim application. Indeed, the Court’s Daily Report indicated that, in light of the impending late claim application, claimant’s attorney was withdrawing his then jurisdictionally defective claim and the Clerk of the Court was directed to close the file (Daily Report received June 19, 2007). Accordingly, the file was closed. Nonetheless, claimant’s reply papers submitted on his late claim application indicate that the attorney did not intend to withdraw the claim.[4] Regardless of the intention of claimant’s attorney, Claim No. 113602 is jurisdictionally defective due to an improper verification by claimant’s brother who is not a party nor one with legal authority to act on behalf of claimant. Accordingly, the Court properly directed that the file be closed and the claim considered a nullity (see Lepkowski v State of New York, 302 AD2d 765, affd 1 NY3d 201 [an unverified or defectively verified claim shall be treated as a nullity]). Court of Claims Act §11[b] requires that a claim be verified in the same manner as a complaint in an action in Supreme Court. CPLR provides that verification of a pleading “shall be made by the affidavit of the party” (CPLR 3020[d]).
Late Claim Application
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 the failure to submit a properly verified claim with the requisite authorization for claimant’s brother to commence an action on behalf of claimant. Moreover, significantly absent from claimant’s moving papers is any proof of claimant’s purported incapacity, either by way of a physician’s affidavit or hospital record establishing claimant’s incapacity during the first 90 days post-accident (see Quilliam v State of New York, 282 AD2d 590 [claimant did not substantiate allegation of incapacity with medical proof]; Goldstein v State of New York, 75 AD2d 613 [alleged incapacity was not a valid excuse for late filing absent a physician’s affidavit or hospital record]). While the affidavit of claimant’s treating physician was submitted (Claimant’s Motion Papers, Ex. D), it fails to address claimant’s condition within 90 days of the accident.

Most significant in this case is the lack of appearance of merit of the proposed claim (Claimant’s Motion Papers, Ex. C). While the parties were afforded the benefit of oral argument, claimant’s attorney did little to shed light on the gaps present in the motion papers he submitted. Instead, he maintained that it was not claimant’s burden, at this time, to establish the appearance of merit of the proposed claim. Hence, it was not surprising that claimant indeed failed to establish 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). “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). The proposed claim is substantially the same as Claim No. 113602 (Claimant’s Motion Papers, Ex. B) and is not adequately detailed (see Anderson v City Univ. of New York, 8 AD3d 413 [late claim application denied where movant failed to adequately set forth facts demonstrating claim had appearance of merit]).

Here, claimant did not submit an accident report, any photographs of the accident site, a witness statement, or a medical record establishing that defendant’s alleged negligence was a proximate cause of the accident (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]; Pagano v New York State Thruway Auth., 235 AD2d 409 [claimants did not submit evidence that roadway was not designed or maintained in accordance with the applicable construction standards and thus failed to establish appearance of merit]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness’ statement]). Claimant’s unsupported self-serving allegations are insufficient to establish the appearance of merit (see Klingler v State of New York, 213 AD2d 378 [claimants’ unsupported opinion does not suffice to establish merit of their claim]).

To the extent that the proposed claim alleges that the lighting at the scene was not functioning at the time of the accident, the law is clear. While the State has a duty to maintain its roadways in a reasonably safe condition, merely because a street light was not functioning at the time of an accident does not establish that the State breached any duty (see Thompson v City of New York, 78 NY2d 682 [claim alleging plaintiff struck by on-coming motorist while crossing the street in the dark, where the nearest street light had burned out, was dismissed because street light outage, standing alone, was insufficient to establish an unreasonably dangerous condition]).

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]).

Finally, claimant has an alternative remedy via suit in Supreme Court against the driver of the motor vehicle (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; Matter of Gallagher v State of New York, supra).

November 15, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[2].Claimant’s attorney has termed his application as “a motion to deem claimant’s Claim, filed on April 19, 2007, as a Notice of Intention to File Claim or, in the alternative, granting Claimant’s motion for leave to file and serve a late Notice of Intention to file Claim” (Claimant’s Notice of Motion). First, there is no legal authority permitting the Court to deem claimant’s jurisdictionally defective claim a Notice of Intention to File Claim. Second, the proper application brought pursuant to Court of Claims Act §10(6) is one for leave to serve and file a late claim and not a late Notice of Intention to File Claim.
[3]. The claim of William J. Lopez was verified by claimant’s brother, William K. Lopez, who is not a party nor one with legal authority to act on behalf of claimant.
[4]. Subsequently, on August 15, 2007, the Governor signed into law a bill which amended the Court of Claims Act to remove the “total sum claimed” requirement. The bill applies to all currently pending claims. Accordingly, Claim No. 113602 was not jurisdictionally defective for the failure to set forth a total sum claimed. However, the amendment leaves in place the remaining jurisdictional requirements of Court of Claims Act §11(b), which includes proper verification and requires strict compliance (see Triani v State of New York, 44 AD3d 1032 [2d Dept, Oct. 30, 2007]).