New York State Court of Claims

New York State Court of Claims

ROMERO v. THE STATE OF NEW YORK, #2007-015-177, Claim No. 113055, Motion Nos. M-72762, M-72806


Defendant's motion to dismiss claim as untimely was granted. Claimant's motion for late claim relief was denied as he failed to establish the necessary criteria to warrant such relief. Claimant's conclusory allegation that he was struck by a vehicle operated by a correction officer on a snowy day failed to establish a meritorious claim. In addition no evidence regarding the nature of the injury was submitted.

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):
M-72762, M-72806
Cross-motion number(s):

Claimant’s attorney:
Juan Romero, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 16, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for an order pursuant to CPLR 3211 dismissing the claim on the ground that it was not timely filed and served. Claimant moves for an order pursuant to Court of Claims Act § 10(6) permitting him to file and serve a late claim. For the reasons which follow, the defendant's motion is granted and the claimant's motion for late claim relief is denied. This claim was received by the Attorney General on November 20, 2006 and filed with the Clerk of the Court on November 29, 2006. The claim alleges that the claimant sustained personal injuries as a result of an automobile accident as follows:
4) That on or about an unknown date in December of 2005, the defendants disregarded their duty to properly regulate institutional traffic at the Washington Correctional Facility, and carelessly and negligently permitted one of its officers operating a vehicle to recklessly speed on a snowy and low visibility day.

5) That while speeding on said snowy day, a corrections officer's vehicle collided with a vehicle being driven by Plaintiff/Claimant, and occupied by one other person. The vehicles collided and the impact resulted in injuries to Claimant's neck, back and shoulder.

In support of dismissal the defendant contends that neither the claim nor a notice of intention to file a claim was filed and served within 90 days after the claim accrued as required by Court of Claims Act § 10(3). Inasmuch as the accident occurred in December of 2005, defendant established that the claim served on November 20, 2006 and filed on November 29, 2006 was untimely. Accordingly, the defendant's motion to dismiss the claim as untimely is granted.

Turning to the claimant's motion for permission to file a late claim, the Court notes that claimant's motion is unaccompanied by a notice of motion. However, the affidavit of service indicates that the motion papers and correspondence expressing claimant's request for late claim relief were served upon the Attorney General on January 3, 2007. Under these circumstances the Court will consider the motion.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Since the proposed claim[1] asserts a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies. Claimant's motion is therefore timely.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).

The excuse advanced by the claimant for the failure to timely serve and file his claim is that he did not realize the severity of his injuries until one year subsequent to the accident. He states that it was not until December of 2006 that he was informed by a doctor that his "pinch[ed] nerves and joint injuries were probably related to the accident". No medical report nor other factual detail is provided with respect to the claimant's course of treatment or the onset of his pain. In the absence of this information the Court finds that the excuse offered for the failure to timely file the claim is inadequate.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together.

Claimant states that the State had notice of the essential facts constituting the claim "in that medical personnel in the prison were aware of [his] injury; the State had the opportunity to investigate the cause of this injury . . . and they have fully investigated the same finding I was not at fault in the accident nor was I nor anything I did the cause of same" (see ¶ 3 of motion for permission to file late claim). Claimant's allegations sufficiently establish that the State had notice of the accident and an opportunity to investigate. Under these circumstances, prejudice cannot be shown. These factors weigh in favor of the claimant.

With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]; Fowx v State of New York, 12 Misc 3d 1184(A) [2006] ).

Here, the claimant failed to provide sufficient details of the accident or the injury to enable the Court to determine that the proposed claim is not patently groundless or legally defective. Although the claimant indicates in his proposed claim that the accident occurred due to the correction officer speeding on a "snowy day", this scant information is insufficient to permit the conclusion that the defendant may be at fault for the accident. In addition, it is unknown whether the vehicle operated by the correction officer was owned by the defendant or operated during the course of the correction officer's employment.

Moreover, recovery for personal injuries sustained in a motor vehicle accident requires a threshold determination that the claimant sustained a "serious injury"[2] or loss greater than "basic economic loss" as defined by § 5102(a) and § 5102 (d) of the Insurance Law (see Insurance Law § 5104 [a]). No evidence has been submitted relative to either economic loss or the nature and extent of the injuries allegedly sustained by the claimant (Toure v Avis Rent A Car Systems, 98 NY2d 345 [2002]). Recovery is foreclosed in those cases in which the injury is no more than a minor, mild or slight limitation of movement (Licari v Elliott, 57 NY2d 230, 236 [1982]). Here, there is nothing before the Court from which it could be concluded that the claimant suffered a "serious injury" or loss greater than the "basic economic loss" as required by the Insurance Law (see Richards v State of New York, Ct Cl, March 27, 2006 [Motion No. M-70768, UID #2006-036-504] Schweitzer, J., unreported)[3].
As to the final factor to be considered, it is unknown whether or not an alternative remedy exists since the owner of the motor vehicle involved in the accident has not been disclosed.

The fact that the State may have had notice of the accident and an opportunity to investigate as claimant alleges is insufficient to support late claim relief. The most important factor, the merit of the claim, has not been demonstrated nor has a reasonable excuse for the delay. Under these circumstances, the Court declines to exercise its discretion to permit the filing of a late claim and the claimant's motion for such relief is denied (Robinson v State of New York, 35 AD3d 948 [2006]; Perez v State of New York, 293 AD2d 918 [2002]).

April 16, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-72762
  1. Notice of motion dated December 28, 2006;
  2. Affirmation of Glenn C. King dated December 28, 2006 with exhibit;
  3. Letter of Juan Romero dated January 3, 2007.

Motion No. M-72806

  1. Notice of motion dated January 3, 2007.

[1]. Although no proposed claim was submitted, the previously filed claim will be treated as the proposed claim for the purpose of this motion.
[2]. "Serious Injury" is defined by Insurance Law § 5102(d) as "[A] personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment".
[3].Unreported decisions from the Court of Claims are available via the internet at