New York State Court of Claims

New York State Court of Claims

MABON v. STATE OF NEW YORK, #2007-018-589, Claim No. NONE, Motion No. M-73758


Synopsis


Movants’ application to file a late claim is granted. Movants rely upon the measurement by their 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. It is alleged 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.

Case Information

UID:
2007-018-589
Claimant(s):
TERRI J. MABON and JOSEPH MABON
Claimant short name:
MABON
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-73758
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
NORMAN ANTHONY PALMIERE, ESQUIRE
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: ROGER B. WILLIAMS, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 3, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Court of Claims Act § 10(6) allows a movant who has failed to serve a notice of

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[6]). Movants bring this timely motion to file a late claim (Court of Claims Act §10 [6]; CPLR § 214[4]). 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 Movant’s[1] 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 § 11-a.


December 3, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


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


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


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

attached thereto.............................................................3


Reply Affirmation of Norman Anthony Palmiere, Esquire

in support......................................................................4


[1].All references to Movant in the singular shall refer to Terri J. Mabon as the claim of Joseph Mabon is derivative from the claim of his wife.