1. Notice of Motion and Supporting Affirmation of Michael Dreishpoon, Esq.,
with annexed Exhibits; and
2. Affirmation in Opposition of Ellen Matowik Russell, AAG, with annexed
Filed papers: None
Movant’s proposed Claim (Dreishpoon Affirmation, Exhibit I) alleges that
on July 4, 2006, at approximately 2:00 p.m. on the Brooklyn Queens Expressway,
Movant was injured when the motorcycle on which she was riding allegedly
encountered a large bump in the middle lane of the roadway. Movant was thrown
over the handlebars of her motorcycle and suffered multiple injuries, including
fractures. The proposed Claim attributes the defect in the roadway to an
asphalt relief joint, described as “paved strips that run perpendicular to
the lanes of travel connecting two portions of the roadway” that are
approximately 1 to 2 feet in width (Proposed Claim, ¶ 6). It is alleged
that the asphalt relief joint in question contained open and obvious bumps,
which presented a danger especially to motorcycles, and that this condition had
“existed for quite some time prior to the accident” (id.
This motion is timely, as it falls within the applicable three-year CPLR
statute of limitations (CPLR 214).
The non-exclusive list of factors the Court must consider in determining a
motion brought pursuant to Court of Claims Act § 10(6) are whether:
1. the delay in filing the Claim was excusable;
2. the State had notice of the essential facts constituting the Claim;
3. the State had an opportunity to investigate the circumstances underlying the
4. the Claim appears to be meritorious;
5. the delay in filing and serving the claim resulted in substantial prejudice
to the State; and
6. the Movant has any other available remedy.
The Court in the exercise of its discretion balances these factors, and as a
general proposition the presence or absence of any one factor is not dispositive
(Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys.
Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ).
Movant retained counsel on August 9, 2006, who served a Notice of Claim on the
City of New York and the New York City Department of Transportation (NYCDOT) on
August 22, and a Freedom of Information Law (F.O.I.L.) request was made to
NYCDOT for photo logs and other records relating to that section of the highway
(Dreishpoon Affirmation, Exhibits C, D). It was not until October 23, 2006
that he received a response from the NYCDOT, a response indicating that the
information requested was not within its jurisdiction and suggesting that the
New York State Department of Transportation be contacted (id. Exhibit E).
The following day, a FOIL inquiry was sent to that agency, and on November 6,
2006 a reply was received indicating that it had records pertaining to the
asphalt strips on that highway. Coincidentally, also on November 6, at a 50-h
hearing, counsel was informed by the attorney for the City of New York that the
Brooklyn Queens Expressway was also Interstate 278 and therefore probably owned
by the State.
It is well-established that ignorance of the law, whether that of the injured
party or of an attorney, is not an acceptable excuse for delay (see e.g. Erca
v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854
; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]). In
most instances, mistake as to the proper governmental entity to sue is
considered a mistake of law and therefore not considered excusable (see
Erca v State of New York, 51 AD2d 611 [3d Dept 1976] [ownership of Tappan
Zee Bridge]; Imoka v State of New York, UID No. 2005-030-923 [Ct Cl
2005], Scuccimarra, J. [confusion as to responsibility for a construction site],
Gross v State of New York, Read, P.J., UID No. 2002-001-084 [Ct Cl
2002], Read, P. J. [responsibility for State park]). There have been
instances, however, in which such confusion about the proper entity to sue has
been held to be reasonable (see e.g. Simon v State of New York, UID No.
2003-030-908 [Ct Cl 2003], Scuccimarra, J. [where there was a division of
responsibility for maintenance of Unified Court System facilities in the City of
New York]). In the instant situation, the confusion about ownership and
responsibility for Brooklyn Queens Expressway may be understandable, but it
should have been possible to identify that roadway as I-287, raising the
question of State ownership, and a timely service of a Notice of Intention would
have fully preserved Movant’s right to sue the State.
Movant asserts that the State had notice of the essential facts constituting
the claim and that a claim was being contemplated as a result of the October 24,
2006 FOIL request sent to DOT (Dreishpoon Affirmation, Exhibit F). This
inquiry, written on the letterhead of Movant’s counsel, states clearly
that he has been retained to “pursue a pesonal injury matter,” gives
the date and location of the accident, and identifies more precisely the
location of the alleged defect. Under the applicable time limitation of Court
of Claims Act § 10(3), the State was entitled to receive such notice on or
before October 2, 2006. In the Court’s view, it is unlikely that a 22-day
delay significantly hindered Defendant’s ability to conduct an
investigation of the matter or caused “substantial” prejudice to its
ability to mount a defense.
It appears that movant has no available remedy against any party other than the
State of New York.
Finally, movant has succeeded in establishing that 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 [Ct Cl 1977]). “Facts stated in a
motion for leave to file a late claim against the State are deemed true for
purpose of motion, when not denied or contradicted in opposing affidavits"
(Sessa v State of New York, 88 Misc 2d 454, 458 [Ct Cl 1976], affd
63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 ), see also Nyberg
v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). The proposed claim
contains specific and clear factual allegations which, if proven, would entitle
Movant to recover from Defendant.
Taking into account the six statutorily prescribed factors, the Court finds
them to weigh in favor of granting Movant permission to file a late claim. The
motion is GRANTED and Movant is permitted to file and serve a claim identical to
the proposed claim in conformity with the requirements of Court of Claims Act
§§ 10, 11, and 11-a within thirty (30) days from the date this
Decision and Order is filed.