New York State Court of Claims

New York State Court of Claims

ORDONEZ v. THE STATE OF NEW YORK, #2007-029-024, Claim No. None, Motion No. M-73208


Late filing motion granted. No basis for defendant’s contention that claimant’s mistake in labeling proposed pleading a “notice of intention to file a claim” rather than a “claim” required denial of motion.

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):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 18, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This motion for permission to late file a claim, pursuant to Court of Claims Act § 10(6), arises out of an alleged incident in which claimant tripped and fell, sustaining a fractured leg, while crossing the intersection of Lawrence Street and Main Street, in Spring Valley on September 13, 2006. She alleges that she tripped on a raised portion of the roadway that appeared to have been recently repaved. [1]

Claimant’s counsel advises that on November 26, 2006, claimant went with an investigator to the accident scene and photographs were taken. He states that on December 4, 2006, he served Notices of Claim on various municipal entities that he thought could have been responsible for the maintenance of the intersection: Rockland County, the Town of Ramapo, the Town of Clarkstown and the Village of Spring Valley. The third-party administrator for the Town of Clarkstown alleged that the Village of Spring Valley was responsible, the Clarkstown Town Clerk alleged that the Town of Ramapo was responsible and the Town of Ramapo alleged that the Village of Spring Valley was responsible. On January 31, 2007, the insurer for the Village of Spring Valley wrote to claimant’s counsel, enclosing an affidavit from the Superintendent of Public Works for the Village, advising that Main Street is a State road under the jurisdiction, control and ownership of the State of New York. The instant motion ensued. [2]

In support of her contention that defendant would not suffer any prejudice from the delay from December 12, 2006 – the expiration of the 90-day period when the claim could have been filed without court permission – to the end of March 2007 when this motion was made (the papers were served March 28, 2007), claimant attaches an affidavit from the investigator who photographed the scene on November 26, 2006. He alleges he returned to the scene with claimant on March 25, 2007 [3], saw that the location looked exactly the same as it did the previous November, and took additional photographs.

Court of Claims Act § 10(6) grants the court the discretion to allow the filing of a late claim upon consideration of all relevant factors, including whether claimant’s delay was excusable, whether defendant had notice of and the timely opportunity to investigate the allegations of the proposed claim, whether defendant would suffer substantial prejudice from an order allowing late filing, whether the proposed claim has the appearance of merit and whether claimant has an alternate remedy.

While mistake as to the proper governmental identity responsible for a particular road is not generally considered an excusable reason for delay, claimant acted expeditiously upon learning of State involvement and the delay here was minimal. There is no indication that defendant had actual knowledge of claimant’s fall prior to the service of the instant papers, but it does have actual knowledge of the allegedly negligent repair work performed by its highway maintenance employees, a conclusion buttressed by defendant’s silence on the issue. Even without regard to the photographs taken by claimant’s investigator, the court would have little trouble concluding that defendant would not suffer any prejudice in defending the claim, much less the substantial prejudice referred to in the statute, arising from claimant’s three plus month delay.

Defendant’s sole contention with respect to the apparent merit of the proposed claim is that such is impossible to address because claimant only submitted a proposed notice of intention, not a proposed claim. The court can only presume that defendant chose to make such a frivolous argument because it had nothing of substance to say. The proposed pleading fully and adequately sets forth all of the information that Court of Claims Act § 11(b) requires of a claim, including a total sum claimed of $1,006,050.00. Defendant submits no authority for the utterly dubious and unsupportable proposition that counsel’s mistake in labeling it a “notice of intention to file a claim,” rather than a “claim,” requires denial of the motion. Indeed, a search of the court’s on-line decision database would reveal dozens, if not hundreds, of decisions where counsel made the same mistake in nomenclature and it was expressly disregarded, both by the court and the Attorney General.

Claimant’s burden on this motion is to show that the proposed claim is not demonstrably frivolous or without merit and that there is reasonable cause to believe that a cause of action exists. Defendant has not chosen to respond to claimant’s allegations that the State was responsible for maintenance of the road, that it had been repaved by State personnel and that such was done in a negligent manner. The court accepts claimant’s allegations at face value for the purpose of this motion and finds that the claim appears meritorious within the meaning of the statute (
Marcus v State of New York, 172 AD2d 724 [2d Dept 1991])

Accordingly, the motion is granted. Claimant shall serve and file her claim (i.e. Exhibit “H” to the Notice of Motion, after excising the words “Notice of Intention to File a” in front of the word “Claim”) within 40 days of the filing date hereof, in accordance with the provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims relative to service and filing of claims, including payment of the filing fee.

June 18, 2007
White Plains, New York

Judge of the Court of Claims

[1].The court received and considered the following papers: Notice of Motion dated March 26, 2007, Affirmation, Affidavit and Exhibits; Affirmation in Opposition dated May 1, 2007 and Reply Affirmation dated May 15, 2007.
[2].Although the notice of motion requests permission to file a late notice of intention to file a claim, relief that is not available, the submitted papers addressed all of the factors relevant to such a motion, and the proposed pleading, although nominally a notice of intention, contains all of the information necessary to constitute a claim, including the total sum claimed (see Kolnacki v State of New York, 8 NY3d 277 [2007]; Lepkowski v State of New York, 1 NY3d 201 [2003]).
[3].Claimant’s counsel’s affirmation states that the investigator returned to the scene on March 25, 2006, rather than 2007, an obvious and inconsequential typographical error.