New York State Court of Claims

New York State Court of Claims

GARCIA v. THE STATE OF NEW YORK, #2007-030-504, Claim No. 112604, Motion Nos. M-72267, CM-72400


Synopsis


Defendant’s pre-answer motion to dismiss for failure to state a cause of action granted; Claimant’s cross motion for late claim relief against the New York State Thruway Authority granted. Based on a review of the evidence submitted, it is clear that Claimants do not have a cause of action against the State of New York the only entity properly served. When evidentiary material is considered on Motion to Dismiss for failure to state a cause of action, issue is whether the Claimant has a cause of action, not simply whether he has stated one, and if evidence shows that a material fact asserted in the claim is not one, and that no significant dispute exists regarding the fact, claim should be dismissed. Since Claimants have not timely served the New York State Thruway Authority in any event, the simple measure of amending the caption to include that entity - against whom there is a cause of action - cannot be accomplished [See Martino v New York State Thruway Authority,154 Misc2d 905 (Ct Cl 1992)] and the claim is dismissed. Claimants allege causes of action with appearance of merit stemming from motor vehicle collision on December 16, 2004 when vehicle owned by the New York State Thruway Authority and driven by an employee operating the vehicle in the course of his employment, collided with theirs, causing serious injury

Case Information

UID:
2007-030-504
Claimant(s):
GEORGE GARCIA and MARIA GARCIA
Claimant short name:
GARCIA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112604
Motion number(s):
M-72267
Cross-motion number(s):
CM-72400
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LAW OFFICES OF WILLIAM A. GALLINABY: DAVID L. ENGELSHER, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: DIAN KERR McCULLOUGH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
January 18, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on Defendant’s motion to dismiss [M-


72267] Claim Number 112604 and Claimants’ cross-motion [CM-72400] for late claim relief:

1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Dian Kerr McCullough, Assistant Attorney General and attached exhibits

3,4 Notice of Cross-Motion; Affirmation by David L. Engelsher, Attorney for Claimants and attached exhibits

  1. Opposition to Motion for Leave to File a Late Claim by Dian Kerr McCullough, Assistant Attorney General
  1. Reply Affirmation by David L. Engelsher, Attorney for Claimants and attached exhibit
  1. Filed paper: Claim
Motion to Dismiss [M-72267]
George and Maria Garcia allege in Claim number 112604 that on December 16, 2004 they were involved in a motor vehicle collision with a vehicle owned by the New York State Thruway Authority [NYSTA] and driven by an employee operating the vehicle in the course of his employment, and suffered serious injury. [Claim Number 112604]. George Garcia was a passenger in the car operated by his wife Maria Garcia. Her claim is a derivative one for loss of consortium. Other than an indication in the second paragraph of the claim that the NYSTA was the owner, it is only the negligent acts of the State of New York - rather than the NYSTA - that are alleged. Notably, this claim was served and filed in accordance with an earlier Decision and Order of this Court granting late claim relief on Claimants’ unopposed motion for same. [See Garcia v State of New York, Claim No. None; Motion No. M-71619, UID #2006-030-552 (Scuccimarra, J., filed July 19, 2006)].

By way of a pre-answer motion to dismiss, the Defendant now raises the issues it should have raised when Claimants moved for late claim relief in the first instance. [See Affirmation in Support of Motion to Dismiss, ¶4]. Namely, the car involved in this accident was a NYSTA vehicle, and Jose Vargas, the driver of the vehicle was likely employed by that entity as well. [Affirmation in Support of Motion to Dismiss by Dian Kerr McCullough, ¶11]. Defendant has appended documentation to the effect that the vehicle was owned by the NYSTA, and that Mr. Vargas was never an employee of the State of New York. [See Affirmation in Support of Motion to Dismiss, Exhibits C and D, Affidavits by, respectively, Terry Law, New York State Department of Transportation, Control Supervisor; and Joan Trombini, New York State Department of Transportation, Regional Personnel Administrator].

Defendant argues that the State of New York is not a proper party to this proceeding, since it neither owned, maintained, operated, managed, controlled or leased the vehicle, nor did it employ Mr. Vargas, the driver of the vehicle; thus no cause of action is stated against it. Notably, the motor vehicle accident report [MV104A] also notes that the owner of the vehicle is the Thruway Authority. [Affirmation in Support of Motion to Dismiss, Exhibit E].
“Initially, the sole criterion [on a motion to dismiss for failure to state a cause of action] is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail . . . (citations omitted). When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate . . . (citations omitted).” Guggenheimer v Ginzburg, 43 NY2d 268, 275 (1977). When “. . . the court has considered extrinsic evidence on a CPLR 3211 motion, . . . ‘[t]he motion should be granted where the essential facts have been negated beyond substantial question by the affidavits and evidentiary matter submitted.’(Blackgold Realty Corp. v Milne, 119 AD2d 512, 513, affd 69 NY2d 719.) ‘[A]llegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence,’ are not presumed to be true and accorded every favorable inference. (Kliebert v McKoan, 228 AD2d 232, lv denied 89 NY2d 802.).” Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 (1st Dept 1999) affd 94 NY2d 659 (2000).

The New York State Thruway Authority is a separate entity created pursuant to the Public Authorities Law [See Public Authorities Law §352], that can sue and be sued in its own name [Public Authorities Law §354]. The Court of Claims has exclusive jurisdiction to hear tort claims against the Thruway Authority, among other causes of action. See Public Authorities Law §361-b. In order to obtain jurisdiction, the Thruway Authority - in addition to the Attorney General - must be served with a Notice of Intention to File a Claim, or a Claim, within ninety (90) days of a claim’s accrual in the same manner that the State of New York is served in order to obtain jurisdiction, that is, the Thruway Authority must be served either personally or by certified mail return receipt requested. See Court of Claims Act §11 (a) (ii); see also Civil Practice Law and Rules §§307 and 312; Martino v New York State Thruway Authority, 154 Misc 2d 905 (Ct Cl 1992).
Based on a review of the evidence submitted, it is clear that Claimants do not have a cause of action against the State of New York. It also appears that Claimants have not timely served the New York State Thruway Authority in any event; thus the simple measure of amending the caption to include that entity cannot be accomplished. See Martino v New York State Thruway Authority, supra at 911. Accordingly, Claim number 112604 is hereby dismissed for failure to state a cause of action against the State of New York.
Cross-Motion for Late Claim Relief [CM-72400]
In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.[1] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive. Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . . ” Court of Claims Act § 10(6). Here, the applicable statute of limitations is three (3) years, thus the motion is timely. Civil Practice Law and Rules §214.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates 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). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.

Other than law office failure, no excuse for the failure to timely serve the Claim on the proper entity within ninety (90) days of the accrual date of December 16, 2004 is offered. The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the New York State Thruway Authority, considered together, weigh toward granting Claimants’ motion, largely because the attempts to both secure the jurisdiction of this Court and simultaneously secure jurisdiction over the appropriate entity, appear to have presented a procedural roadblock for these Claimants despite their attempts to bring the matter forward, and the Court generally favors resolution of a claim on the merits where there is no actual prejudice.

On January 27, 2005 - well within ninety (90) days of the accrual of any claim - Claimants’ process server erroneously served a Notice of Intention to File a Claim on the Court of Claims, rather than upon the Office of the Attorney General and/or upon the New York State Thruway Authority. [See Affirmation by David L. Engelsher, ¶11; Exhibit G]. It is noted that although the caption of the Notice of Intention indicates the State of New York as the Defendant, the body of the document refers to the Thruway Authority as the owner of the vehicle. [Id.]. Thereafter, Claim Number 111244, naming the State of New York as a Defendant was served on the Office of the Attorney General on August 10, 2005. [Ibid. Exhibit H]. Ironically, the Answer served by the Attorney General in response to the Claim on September 26, 2005, in the section containing general denials, also sets forth an admission to the effect that the car was owned by State of New York, and operated by its employee in the course of his employment. [See Reply Affirmation by David L. Engelsher, ¶¶ 3 and 4; Exhibit A] Claim number 111244 was dismissed by this Court because it was untimely on March 7, 2006.[2]

Thereafter, Claimants served and filed a motion for late claim relief, that was unopposed by the Attorney General, and the service and filing of Claim Number 112604 in August 2006 proceeded according to the terms of the Decision and Order granting such relief rendered on July 19, 2006. Although Claim Number 112604 was not served on what now appears to be the proper entity - the New York State Thruway Authority - nor does it name the proper entity - it was nonetheless “investigated” by the Office of the Attorney General before the foregoing motion to dismiss was made, given the attachment of the affidavits by State employees to the moving papers. Similarly, the Attorney General’s Office “investigated” the other, earlier, and jurisdictionally deficient Claim dismissed by the Court on March 7, 2006. Indeed, leave to serve a late Answer was sought by the Attorney General’s Office from Claimants’ counsel ostensibly because of such “investigation.” There is documentary evidence in the form of the accident report, for example, that reveals that the Thruway vehicle was towed: a matter that clearly would have been brought to the attention of the driver’s employer at the time. [Affirmation by David L. Engelsher, Exhibit A]. This is not, as argued by Defendant, the same as the situation where a New York State Trooper is alleged to have assaulted the Claimant to whom he issued a ticket, and knowledge of the alleged assault would not be imputed to the agency. [cf. Bommarito v State of New York, 35 AD2d 458 (4th Dept 1971); Opposition to Motion for Late Claim Relief, ¶11]. Although the passage of time since the accident of December 16, 2004 has been substantial [cf. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual)], it has not been so great that the Thruway Authority’s ability to investigate is impeded to its prejudice, especially in light of the fact that its legal representatives have been involved with responding to any potential lawsuit against the Thruway Authority almost since the inception of Claimants’ attempts to serve and file a proper claim. Accordingly, these factors weigh in favor of granting the motion.

Most importantly, the claim has the appearance of merit. Claimants have attached Claimant George Garcia’s affidavit, further attesting to the facts of the accident and the injuries suffered [see Affirmation by David L. Engelsher, Exhibit K]; the police accident report giving the details and placing the vehicles at the points of impact and rest [ibid. Exhibit A], and medical records substantiating injuries. [See ibid. Exhibits B, C, D, E, F]. Claimant George Garcia apparently has a scar, walks with a limp, and is still in pain as of the date of his affidavit. [See ibid. Exhibit K]. If the allegations in the Claim are accepted as true for the purposes of the cross-motion, Claimants have made the requisite showing of merit in order to permit late service and filing of their claim.

Accordingly, Claimants’ cross-motion for permission to serve and file a late claim is hereby granted. Claimants are directed to serve a Claim identical to the proposed Claim containing the proper caption and reference to the Thruway Authority, upon the Attorney General and the New York State Thruway Authority, and to file same with proof of service, with the Chief Clerk of the Court of Claims, all within forty-five (45) days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to §§10, 11, 11-a; the Uniform Rules for the Court of Claims at 22 NYCRR §206.1 et seq, and Civil Practice Law and Rules §§307 and 312.

January 18, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]
[2].Claim Number 111244 arising out of the same accident had been dismissed by this Court because Claimant failed to timely and properly serve either a Notice of Intention to File a Claim, or the Claim itself, within ninety (90) days of its accrual. In the Decision and Order dismissing Claim Number 111244, the Court noted that some of the arguments advanced by Claimants’ counsel to oppose dismissal more properly belonged in an application for permission to serve and file a late claim. Thereafter, Claimants served the unopposed motion for late claim relief against the State of New York, that was granted, and that resulted in service of the claim dismissed today. [Claim Number 112604]. The State of New York through the Office of the Attorney General throughout this motion practice did not allude to the Thruway Authority at all.