Court of Claims Act § 10(6) allows a movant who has failed to serve a
intention, or who has failed to file and serve a claim within the time frame set
forth in Court of Claims Act § 10 to make an application to the Court to
file such a claim, in the discretion of the Court, at any time before an action
asserting a like claim against a citizen of the State would be barred under
article two of the CPLR (Court of Claims Act § 10). Movants bring this
timely motion to file a late claim (Court of Claims Act §10 ; CPLR
§ 214). Defendant opposes the motion.
To determine whether an application for permission to file a late claim should
be granted, consideration must be given to the six factors listed in Court of
Claims Act § 10(6), and any other relevant factors. The presence or
absence of any one factor is not determinative (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). Instead, it is a balancing of
all of the factors by the Court which may warrant the granting of the
application to file and serve a late claim.
The proposed claim arises from an accident on September 9, 2006, in which
vehicle was traveling in a
westbound direction on Route 104 in the Town of Ontario, County of Wayne.
Movant came to a complete stop for a red light at the intersection of Route 104
and Furnace Road. Movant was in the left turning lane. After a green traffic
arrow appeared on the traffic light at the intersection, Movant began a left
southbound turn through the intersection onto Furnace Road. When Movant’s
vehicle reached Furnace Road as it intersects with the south bound edge of the
eastbound traffic lane of Route 104, her vehicle was struck in the passenger
door by a 2000 Ford Pickup, driven by Donald R. Miner and registered in the
State of Florida, which was traveling eastbound on Route 104. Mr. Miner
allegedly also had a green traffic signal in the direction he was proceeding.
As a result of the accident, Movant has suffered injuries. It is alleged that
the State failed to appropriately time the left turn green arrow light at the
intersection with the green light for through eastbound traffic on Route 104.
Movant filed this application over 10 months after the accident.
The first factor the Court will consider is whether Movant has a valid excuse
for failing to timely serve a notice of intention or file and serve a claim.
Movant alleges that the delay in this case was the result of her lengthy
convalescence and her inability to obtain the assistance of an attorney until
April 6, 2007. Movant was hospitalized for only eight days and she does not
specify how long she was otherwise incapacitated. Nothing before the Court
substantiates that she was incapacitated as a result of her injuries for the
90 days following the incident (Klinger v State of New York, 213 AD2d
378; Cabral v State of New York, 149 AD2d 453; Wolf v State of New
York, 140 AD2d 692). Moreover, her inability to secure legal counsel is
not a sufficient excuse (Sandlin v State of New York, 294 AD2d 723).
Movant has failed to set forth a valid excuse.
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 does not assert that the State
had notice of the essential facts or an opportunity to investigate. Rather,
Movant asserts that the State will not be prejudiced by the granting of this
application because the timing of these traffic lights, repairs, and
maintenance performed should all be accessible by the Department of
Transportation records. Defendant argues that it will be prejudiced in that
the State cannot access the drivers of other vehicles present at the time of
this accident because they are both out-of-state residents and it is not known
whether other eyewitnesses exist.
Although, clearly, there was no notice or opportunity to investigate, the
Movant provides that she will be deposing the out-of-state driver of the other
vehicle for a Supreme Court action, so there will be some sworn statements
accessible to the State through discovery regarding the position of this driver.
Additionally, Defendant does not dispute the availability of records from the
Department of Transportation regarding the timing and maintenance of these
traffic lights. As a result, the Court finds the State will not be
substantially prejudiced by the granting of this application.
The next factor, whether the claim appears to be meritorious, is often referred
to as the most essential factor. Generally 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). Typically, where the allegations of negligence
involve matters which are not within the common knowledge of a lay person, an
expert affidavit is necessary in order to establish that a cause of action
exists. This is true in the area of medical malpractice as well as where a
departure from acceptable standards for highway design and construction is
alleged (see Schreck v State of New York, 81 AD2d 882; Nyberg v State
of New York, 154 Misc 2d 199). Movant, in this case, has not submitted any
expert affidavit. Movant relies upon the measurement by her attorney at the
intersection of the timing between the left turn arrow turning green and the
light for eastbound traffic on Route 104 turning green. He assessed that only
eight seconds passed between those changing lights. There is no allegation
that the State had notice of the brevity between changing lights; however, with
no dispute that this traffic control device is under its control, it is likely
the State set the timing for the changing lights and it would also likely have
the duty of inspection and maintenance for traffic control devices under its
control. Accepting Movant’s allegations as true, as required at this
time, and given the low-threshold for finding potential merit, the Court
believes Movant has met her minimal burden as eight seconds for a driver to
react and clear an intersection is not a long time. Nonetheless, Defendant
aptly points out the many hurdles which face Movant in ultimately proving her
case against the State. Yet, those are concerns more appropriate for trial.
The final factor is whether the Movant has any other available remedy. Movant
has another remedy which she is pursing. She has an action in Supreme Court
against the driver who struck her vehicle. This factor weighs against
granting Movant’s application.
Accordingly, upon balancing all of the factors in Court of Claims Act §
10(6), this Court GRANTS the Movants’ motion to permit the late filing and
serving of the claim. Movants are directed to file and serve the proposed
claim in accordance with all applicable statutes and rules within 45 days of the
date this Decision and Order is filed with the Clerk of the Court and to pay the
filing fee or make an application in accordance with Court of Claims Act §
The Court has considered the following documents in deciding this motion:
Affidavit of Terri J. Mabon, sworn to July 17, 2007, in
support, with exhibits attached thereto........................2
Affirmation of Roger B. Williams, Esquire, Assistant
Attorney General, in opposition, with exhibit
Reply Affirmation of Norman Anthony Palmiere, Esquire