New York State Court of Claims

New York State Court of Claims

ALLSTATE v. STATE OF NEW YORK, #2007-018-562, Claim No. None, Motion No. M-72490


Late claim application granted.

Case Information

ALLSTATE INSURANCE COMPANY, as Subrogee of James Mazur
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):

Claimant’s attorney:
ROBERT G. MAZEAU LAW FIRMBy: Ying Hua Huang, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Patrick MacRae, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 15, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a timely motion seeking permission to file a late claim pursuant to Court

of Claims Act § 10(6) (CPLR 214[4]). Defendant opposes the motion.

Movant is the subrogee of James Mazur, the owner of a motor vehicle involved in an accident with a police officer, employed by the State University of New York Upstate Medical University (hereinafter University Hospital), on March 10, 2006. In the proposed claim, Movant seeks damages of $6,378.42, the amount of insurance reimbursement paid to its insured, James Mazur, for damage to his vehicle as a result of the accident.

Court of Claims Act § 10(6) requires that the Court, in deciding an application for permission to file a late claim give consideration to six factors: (1) whether there is a reasonable excuse for the delay in filing the claim; (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 notice of intention resulted in substantial prejudice to the State; (6) whether there is any other available remedy, and any other relevant factors. There is no one factor that is determinative, rather it is a balancing of all of the factors that may warrant granting the application (Bay Terrace Cooperative Section IV, Inc., v New York State Employees’ Retirement System, Policemen’s and Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965).

The first factor, is whether the delay in filing the claim is excusable. Movant’s counsel asserts that an attempt was made to “file”[1] a claim with SUNY Upstate Medical Center. However, Movant’s counsel was later advised that the claim was improperly filed and by that time, the 90 days after the date of the accident had already expired. This is not an acceptable excuse (Matter of Galvin v State of New York,176 AD2d 1185, lv denied 79 NY2d 753).

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant’s counsel asserts that the State had notice of the facts and circumstances underlying this claim. A State employee was involved in this accident, and an officer from the Syracuse City Police Department investigated the accident and filed a police accident report. Movant’s supporting documents include a memorandum from Lieutenant E. Rabusin of the University Police to the Syracuse Police Officer investigating this accident, establishing that the supervisor of Officer Luke Learned, the University Hospital police officer involved in this accident, had notice of the accident within at least two days. The involvement of a State employee in the collision itself, timely notice to his supervisor, coupled with the police report, establishes that the State had notice and an opportunity to investigate and will not be substantially prejudiced. These factors weigh in favor of granting Movant’s application.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. A proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199).

Although this is a subrogation action seeking reimbursement for the cost of property damage, the underlying basis of the claim is the purported wrongdoing of the State’s employee, Police Officer Luke Learned, in colliding with the vehicle driven by Movant’s insured’s wife. The only statement from anyone with personal knowledge of the accident, provided with Movant’s Notice of Motion was the sworn statement of Officer Luke Learned. Movant submitted an affidavit from Lisa Mazur, the driver of the insured vehicle at the time of the accident, in its reply papers. However, “[t]he function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion.” (Seefeldt v Johnson, 13 AD3d 1203-1204, quoting Ritt v Lenox Hill Hosp., 182 AD2d 560, 562). Movant should not be allowed to raise new issues in a reply affidavit at a point when Defendant has no “obligation nor opportunity to respond absent express leave of court.”(Ritt,182 AD2d at 562). Thus, no information in Ms. Mazur’s reply affidavit that wasn’t indicated in Movant’s original submissions or in direct response to Defendant’s documents was considered.

Based upon the supporting documents, Lisa Mazur was exiting Route 81 Northbound at the East Adams Street exit and was turning right onto East Adams Street at approximately 6:10 p.m. on March 10, 2006. The traffic light facing her was red. She noticed to her left a procession of police vehicles, with lights and sirens engaged, moving through the intersection. She waited for all the police vehicles to turn left through the intersection onto Almond Street. Ms. Mazur claims that she looked both ways and began to make a righthand turn onto East Adams Street when the vehicle Officer Luke Learned was driving struck her vehicle. In her reply affidavit, Ms. Mazur indicates that Officer Learned did not stop at the flashing red light at the intersection of Monroe Avenue and East Adams Street before he collided with her vehicle. The impact caused Ms. Mazur’s vehicle to change direction and cross the intersection. The University Hospital police vehicle also proceeded across the intersection striking a fire hydrant and a utility pole.

Officer Learned indicates that about 75 yards before the intersection he engaged his lights and siren in anticipation of assisting the Syracuse Police Department in a pursuit of a suspect vehicle which was proceeding from East Adams Street onto Almond Street. Almond Street is directly across the intersection from the 81N East Adams Street off-ramp. Officer Learned, at the time, was driving north on Monroe Avenue, a street which runs parallel to the right (facing the intersection) of the 81N off-ramp ending at a “T” intersection with East Adams Street. Officer Learned indicates that he applied his brakes and slowed down approximately 40 feet before the intersection. As he entered the intersection, he saw Ms. Mazur’s vehicle turning right onto East Adams Street. In his affidavit, Officer Learned indicates that before entering the intersection he could see that the light at the exit 81N off-ramp was red, and all the traffic in the area was stopped or slowed due to the procession of Syracuse Police vehicles with their lights and sirens activated.

Defendant argues that the meritoriousness of this claim must be assessed in light of the higher standard required by Vehicle and Traffic Law § 1104. It is Defendant’s position that Officer Learned’s conduct must be judged, not by the standards of ordinary negligence, but rather by the higher standard of “reckless disregard.”

Vehicle and Traffic Law § 1104 provides that the driver of an authorized emergency vehicle when in an emergency operation, may disregard certain traffic laws and will not be found liable unless it is shown that the vehicle was operated with “reckless disregard for the safety of others.” (Vehicle and Traffic Law § 1104[a], [b], [c] and [e]). Defendant argues that the Movant’s allegations of wrongdoing do not rise to the level of reckless disregard, and, therefore, the claim fails to set forth a potentially meritorious cause of action. Conduct in reckless disregard for the safety of others has been described as “the conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow, and done with conscious indifference to the outcome.” (Saarinen v Kerr, 84 NY2d 494, 501; Salzano v Korba, 296 AD2d 393). Although the officer’s actions may violate provisions of the Vehicle and Traffic Law, this will not alone render the officer’s conduct reckless or provide an alternative basis for liability (Turini v County of Suffolk, 8 AD3d 260, 262; see also Szczerbiak v Pilat, 90 NY2d 553, 557).

Here, Movant does not dispute that Officer Learned was operating an emergency vehicle engaged in an emergency operation at the time of this collision. Yet, Movant does dispute whether Officer Learned’s conduct in proceeding through the intersection could be found to meet the higher standard of reckless disregard for the safety of others.

Ms. Mazur maintains that she stopped at the light at the intersection with East Adams Street, waited for the other emergency vehicles to pass, looked to her right including onto Monroe Road before proceeding with her righthand turn. Officer Learned indicates that he activated his lights and siren and slowed down approximately 40 feet before the intersection. He states that “[t]he traffic in the area of the intersection appeared that it was slowing or stopped as they saw all of the other police vehicles with their lights and sirens on.” (Movant’s Notice of Motion, Exhibit B). He goes on to state that “[i]t appeared that no traffic was going to be driving in front of my vehicle and that the light for the I-81 off ramp was red. I then took my foot off of the brake as I was closer to the intersection.” (Movant’s Notice of Motion, Exhibit B). Syracuse City Police Officer David Gilbertsen, who investigated the accident, indicates that although Officer Learned slowed prior to the intersection, he resumed his speed as he went through the intersection. There is no indication at what speed he proceeded through the intersection.

Although the proof may only show ultimately that Officer Learned failed to act prudently in proceeding through the intersection, there are sufficient factual allegations at this juncture to find, based upon the minimal standard that the allegations contained in the proposed claim and supporting documents, Movant may potentially have a valid cause of action (see for example Campbell v City of Elmira, 84 NY2d 505 [fire truck proceeded through intersection at a speed of 10 to 15 miles per hour against a red light and was struck in the rear wheel-well by a motorcycle unable to stop. Jury found reckless disregard standard was met where questions of whether the siren was activated, whether the fire truck driver knew what the color of the traffic light was, whether he accelerated or decelerated when he entered the intersection, and whether he looked toward the lane where the motorcycle was traveling before entering the intersection, could not find that officer did not act with reckless disregard as a matter of law]; Ham v City of Syracuse, 2007 WL 293064, [issue of fact whether officer acted with reckless disregard by entering a blind intersection against the red traffic light at a questionable speed without activating his emergency lights and siren]; Baines v City of New York, 269 AD2d 309 [officer was found to have driven with reckless disregard when he drove through intersection at an unsafe speed, against a red traffic light without sounding his siren or adequately reducing his speed before suddenly stopping and made no attempt to avoid the collision with other vehicle]; Schaeffer v DiDomenico, 238 AD2d 931 [could not find that officer did not act with reckless disregard as a matter of law when he crossed turning lane for oncoming traffic through a congested intersection at speed exceeding 50 miles per hour]; Worden v Enser, 268 AD2d 582 [issue of fact whether officer acted with reckless disregard when police-vehicle skidded into rear of a vehicle stopped in traffic].

The final factor is whether the movant has any other available remedy. Movant does not have another remedy.

Accordingly, upon balancing all of the factors in Court of Claims Act § 10(6), this Court GRANTS the Movant’s motion to permit the late filing and serving of the proposed claim properly verified. Movant has 30 days from the date this Decision and Order is filed with the Clerk of the Court to properly serve and file the proposed claim and pay the required filing fee in accordance with Court of Claims Act §§ 11 and 11-a.

March 15, 2007
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion..............................................................................................1

Affirmation of Ying Hua Huang, Esquire, in support, with exhibits attached


Affirmation of Edward A. Jayetileke, Law Clerk, under the supervision

of Patrick F. MacRae, Esquire, Assistant Attorney General, in

opposition, with exhibits attached thereto............................................3

Memorandum of Law dated December 21, 2006, in opposition......................4

[1]. Presumably movant meant served, as notices of intention do not have to be filed (Court of Claims Act
§ 11[a][i]).