New York State Court of Claims

New York State Court of Claims

ALLSTATE v. THE STATE OF NEW YORK, #2007-030-556, Claim No. None, Motion No. M-73480


Synopsis


Late claim motion denied. Merely alleging general negligence on the part of the State does not show the appearance of merit for late claim purposes. Proposed claim does not say what kind of State vehicle was involved in the accident, nor is there any description of the conduct by the State vehicle allowing anyone reviewing the Claim to discern exactly what happened. The affidavit by the insured does not even say what happened

Case Information

UID:
2007-030-556
Claimant(s):
ALLSTATE INSURANCE COMPANY as Subrogee of Federico Spista
Claimant short name:
ALLSTATE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-73480
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ROBERT G. MAZEAU LAW FIRMBY: YING HUA HUANG, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: VINCENT M. CASCIO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 4, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on Claimant's motion for permission to


serve and file a late Claim:

1,2 Notice of Motion, Affirmation of Ying Hua Huang, attorney for Claimant, in Support of Motion to file late claim and attached exhibits

  1. Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney General
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. 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, Inc. 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 . . .” § 10(6) Court of Claims Act. Here, the applicable statute of limitations is three (3) years, thus the motion is timely. Civil Practice Law and Rule §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.

Claimant does not offer any reasonable excuse as to why the claim was not served and filed within ninety (90) days of its accrual on July 22, 2006 when Federico Spista alleges he collided with a vehicle owned by one of the agencies of the State of New York. [See Affidavit of Federico Spista, ¶3]. Claimant has not established any reasonable excuse for the delay between the time the claim purportedly arose and the time this application was made. Accordingly, this factor weighs against it.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh marginally toward granting Claimant's motion. The State is not assumed to have actual knowledge of events giving rise to a claim merely because an agency may have addressed accident claims, nonetheless, the passage of time has not been so great that the State's ability to investigate is impeded to its prejudice. 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). Accordingly, these factors weigh in favor of granting the motion.

The proposed Claim indicates that on July 22, 2006 at Mamaroneck Avenue in White Plains, New York a vehicle owned by the “NYS UMRDD” and operated by Doris E. Taggart struck the subrogor’s vehicle. [Affirmation by Ying Hua Huang, Exhibit A]. Damages in the amount of $2,387.31 are sought. [Ibid.].

It is well settled that the appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim, as it would be an act of futility to permit service of a late claim when it is patently defective or is subject to a complete defense. Defendant argues that on the face of the claim, even if all allegations are accepted as true, there is no indication of how the accident occurred or how the State vehicle was negligent, and that the claim is “devoid of any allegations of negligence or carelessness on the part of the State of New York.” [Affirmation in Opposition by Vincent M. Cascio, ¶8]

The court agrees that the allegations contained in the proposed claim do not say what kind of State vehicle was involved in the accident, nor is there any description of the conduct by the State vehicle allowing anyone reviewing the Claim to discern exactly what happened. Indeed, even the affidavit of Mr. Spista does not say what happened, although the accident report and the correspondence between the claims adjusters and claimant appear to indicate that each driver blamed the other for a collision, with Mr. Spista indicating that the State vehicle “rear ended” him. [See Affirmation by Ying Hua Huang, Exhibits B, C, D]. Merely alleging general negligence on the part of the State does not show the appearance of merit for late claim purposes. Accordingly, Claimant's motion [M-73480] for permission to serve and file a late claim is hereby in all respects denied.


September 4, 2007
White Plains, New York

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