LYNCH v. THE STATE OF NEW YORK, #2007-030-577, Claim No. None, Motion No.
Late claim motion denied. Proposed claim alleges that a New York State Trooper
was engaged in chasing a stolen vehicle driven by a third party when the trooper
deliberately struck the car he was chasing, which then struck claimant’s
car, causing him serious injury. No date of accrual is alleged, although from
other sources can be seen that accident occurred on February 8, 2006. Claimant
himself did not report any police chase in the contemporaneous accident report.
For liability to flow from an emergency operation of a police vehicle, the
element of reckless disregard for the safety of others must be shown. Vehicle
and Traffic Law §1104(e). Under either version of the accident presented,
claimant has not established the appearance of merit
1 1.The caption has been amended to reflect the only proper defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
DUPEE & MONROE, P.C.BY: JON C. DUPEE, JR., ESQ.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
October 31, 2007
See also (multicaptioned
The following papers were read and considered on claimant’s motion for
serve and file a late claim:
1,2 Notice of Motion; Affirmation by Jon C. Dupee, Jr., Attorney for Claimant
and attached exhibits
Affirmation in Opposition for Leave to File Late Claim by Barry Kaufman,
Assistant Attorney General and attached exhibits
Reply Affirmation by Jon C. Dupee, Jr., Attorney for Claimant and attached
Anthony Lynch alleges in his proposed claim that a New York State Trooper, Gary
King, was operating a State Police vehicle in the course of his employment and
engaged in chasing a motor vehicle driven by Andrew Schlagler, when he
deliberately struck Mr. Schlagler’s car, which then struck
claimant’s car causing him serious injury. No date of accrual is alleged,
however, in other papers it can be seen that the incident occurred on February
8, 2006. [Affirmation by Jon C. Dupee, Jr., Exhibits A, E, F].
In the affirmation in support of claimant’s motion for late claim relief,
counsel indicates that a lawsuit was commenced on September 20, 2006 in Orange
County Supreme Court naming as defendants Andrew Schlagler, Leo Kaytes Ford (the
entity from whose lot Mr. Schlagler apparently stole the car involved in the
accident), and James R. Wolff (the owner of the car). [Affirmation by Jon C.
Dupee, Jr., ¶¶ 2 and 3]. Issue was joined with regard to Leo Kaytes
Ford and James R. Wolff. [Ibid. ¶¶ 4 and 5, Exhibits B and C].
Mr. Schlagler defaulted and a default judgment was taken against him on February
16, 2007. [Ibid. ¶ 6, Exhibit D]. Both answering defendants and
the claimant were deposed in the supreme court action, but Mr. Schlagler had yet
to be deposed at the time the present motion was made. [Ibid. ¶ 7].
When counsel was engaged by Mr. Lynch, he was provided with a copy of
claimant’s accident report and the police report prepared by Trooper Gary
King. [Ibid. Exhibits E and F]. Both indicated that the only other car
involved in the accident was that driven by Mr. Schlagler. [Id.] Both
reports indicate that alcohol use on Mr. Schlagler’s part was a
contributory factor [Id.].
On July 9, 2007 and July 25, 2007, counsel indicates he received correspondence
from Andrew Schlagler, who was incarcerated with regard to the theft of the
vehicle involved in the accident. [Ibid.¶10 Exhibit G]. In the
correspondence Mr. Schlagler alleges that Trooper Gary King caused the accident
during his pursuit of Mr. Schlagler, because the trooper “. . . performed
a PIT manuever (sic), ramming said vehicle on the left rear bumper/bed
area . . .” and causing Mr. Schlagler to lose control of his own vehicle.
[Id.]. This was the first indication that counsel for claimant had that
any other vehicle was involved in the accident and, if true, “. . . then
Trooper Gary King was arguably negligent in the operation of his State Trooper
vehicle in that he apparently struck the vehicle being operated by Andrew
Schlagler with his New York State Trooper vehicle causing the Schlagler vehicle
to lose control and strike the vehicle being operated by the claimant Anthony
Lynch.” [Ibid. ¶16].
The correspondence from Mr. Schlagler appears to have been originally sent to
the attorneys for Mr. Wolff on January 2, 2007 [see Affirmation in
Opposition by Barry Kaufman, Assistant Attorney General, Exhibit 1(complete
deposition)], in reaction to a deposition Mr. Schlagler heard was to be held on
January 17, 2007, and in an apparent attempt to avoid same. [Affirmation by Jon
C. Dupee, Jr., Exhibit G]. Mr. Schlagler wrote to claimant’s counsel in
July 2007 enclosing the earlier correspondence, also in response to an attempt
to schedule a deposition, this time by claimant’s counsel. [Id.].
After claimant’s counsel’s affirmation was written on August 8,
2007 it appears that Mr. Schlagler was deposed on September 13, 2007.
[Affirmation in Opposition by Barry Kaufman, Assistant Attorney General,
¶5, Exhibit 1(complete deposition); Reply Affirmation by Jon C. Dupee, Jr.,
Attorney for Claimant, ¶3, Exhibit A (partial deposition)]. During his
deposition Mr. Schlagler indicated that he recalled sending the above-mentioned
correspondence to claimant’s attorneys, that he (at first) had a
recollection of a police car making contact with his car and, finally, that he
did not have any recollection of a police car actually making contact
with his car, but rather that he had been told by a short-wave radio enthusiast
who had been listening to the county police scanner that there was a pursuit,
and that his own independent recollection was that he was being pursued by a
police car, and then woke up in the hospital. [Ibid.]. While the
defendant here describes this testimony as a “recantation” on Mr.
Schlagler’s part of the allegation that a state trooper was chasing him,
[See Affirmation in Opposition by Barry Kaufman, ¶5], claimant
describes it as Mr. Schlagler’s explanation as to how he obtained
knowledge of Trooper King’s alleged involvement through hearsay
information from his friend. [Reply Affirmation by Jon C. Dupee, Jr., ¶ 3].
The court has reviewed the entire deposition transcript and agrees that Mr.
Schlagler does not speak from any personal knowledge as to whether the New York
State Police was involved at all prior to the accident, except that he
“recalled” a police vehicle - that he sometimes identified as a
state police vehicle - traveling in the opposite direction from him on Route 209
and passing him by as he drove in the other direction. [See Affirmation
in Opposition by Barry Kaufman, Exhibit 1]. Whether this police vehicle turned
around and chased him, or whether it or another state police vehicle was
involved in the alleged ramming maneuver, is not suggested except from the
hearsay reported by Mr. Schlagler in his deposition attributed to his friend.
There is no eyewitness account of this incident presented in the moving papers.
Moreover, throughout the deposition of Mr. Schlagler there are repeated
assertions on his part as to not remembering anything until he woke up in the
hospital, and his lack of any independent recollection as to how or why he lost
control of the stolen vehicle he was driving. Counsel for claimant’s
assertion that Mr. Schlagler “. . . confirmed that he has an actual
recollection of being pursued by the New York State Police and a New York State
Police car pulling next to him or to the side of him immediately before he lost
consciousness” is an overstatement of what Mr. Schlagler actually
indicated throughout his deposition, namely, that he did not remember. [Reply
Affirmation by Jon C. Dupee, Jr., ¶ 3]. Even crediting Mr.
Schlagler’s mixed recollections, he could not say what type of police
vehicle was chasing him, or what type of police vehicle pulled up next to him if
that event occurred. He did say that the police vehicles, from whatever agency,
had emergency lights flashing, and that he did not know if they had sirens on,
largely because he had his radio blaring.
Another source for the allegation that a state police vehicle may have been
involved in a pursuit was apparently revealed during a deposition of Mr. Wolff,
the owner of the stolen car. [See Affirmation in Opposition by Barry
Kaufman, ¶ 6]. During his deposition taken on August 2, 2007 Mr. Wolff
stated that he discussed the accident with the state police, and that
. . . [him] they were in pursuit of a red Ford pickup truck. They . . . went
around a hairpin turn with the vehicle. The State Police lost sight temporarily
of the vehicle. When the State Trooper came around the turn, it was a hairpin
turn, the truck was in the midst of a barrel roll.” [Reply Affirmation by
Jon C. Dupee, Jr., Exhibit B]. The state trooper he spoke to was, he alleges,
Jan Golding. [Ibid.]. In this second - still hearsay - version of the
incident, pursuit alone is alleged, rather than a ramming maneuver. Although it
is indicated in the Reply Affirmation that the deposition of Mr. Wolff was taken
after the present motion was submitted, [see Reply Affirmation,
¶5], it is noted that counsel’s initial affirmation is dated August
8, 2007, the deposition is dated August 2, 2007, and that depositions of the
“named defendants” are asserted to have occurred in the supreme
court action in the initial affirmation. [Affirmation by Jon C. Dupee, Jr.,
No affidavit from the State troopers discussed, namely Gary King or Jan
Golding, is submitted. As noted above, Mr. Lynch did not indicate in his
accident report, or in any affidavit or other sworn statement, that there was a
police chase of any kind.
DISCUSSION AND CONCLUSION
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).
A copy of the proposed Claim
, must accompany
the motion, allowing the Court to ascertain the particulars of the claim,
including the date of accrual, specific location of the alleged accident, and
what permanent injuries are alleged. See
Court of Claims Act
§11(b); Sinski v State of New York
, 265 AD2d 319 (2d Dept
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, 11 (Ct Cl 1977). Claimant need not
establish a prima facie case at this point, but rather the appearance of
merit. The Court notes that a claimant is not entitled to have “. . .
pre-claim discovery . . . to ascertain whether facts supporting a cause of
action actually exist . . . (citations omitted).” Edens v State
of New York, 259 AD2d 729, 730 (2d Dept 1999).
As an initial matter, the proposed claim is inadequate because it does not
indicate a date of accrual as required, and the motion is denied on that ground
alone. Court of Claims Act §§10(6) and 11(b); 22 NYCRR §206.6.
More substantively, the excuse presented - that there was no indication until,
at the earliest July 2007 that the New York State Police might be involved - is
arguably a reasonable one. Indeed, even assuming that counsel learned in January
2007 that there might be State Police involvement by virtue of communication
between counsel involved in the supreme court litigation, any hesitation in
seeking late claim relief earlier could be attributed to the laudable goal of
investigating the matter further to see if, indeed, such allegations were true.
For the moment, the court does not comment on the fact that if police agencies -
local or state - were involved in a high speed chase it would have been obvious
fairly early on, and would have been worth further inquiry on counsel’s
part far earlier than more than one year after the accident. Even the presence
or absence of such an excuse however, is not conclusive of the issue as to
whether claimant should be permitted to serve and file a late claim.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh heavily against granting
claimant’s motion. No accident reports discuss a police chase involving
State vehicles, no witness attested to same until (perhaps) January 2007 or July
and August 2007, well after the State would have had an opportunity to
adequately investigate the matter. Any opportunity to examine or photograph the
State vehicle purportedly involved in either a high speed chase or an impact is
lost because of the delay.
In terms of an alternate remedy, claimant already has an action pending in
State Supreme Court, and has not shown how that action cannot provide him with
relief as to any claimed injuries.
Finally, claimant has not established the appearance of merit to a cause of
action against the State of New York as required. See generally Matter
of Santana v New York State Thruway Authority, supra. Under the
two, unsubstantiated versions of the incident presented, a State Police vehicle
was either chasing the car that struck claimant, or struck the car that struck
claimant, or both, resulting in serious injury to claimant. Significantly,
there is no first-hand account of these events.
Additionally, Vehicle and Traffic Law §1104(e) provides the standard for
any alleged liability flowing from an emergency operation of a police vehicle
[see Vehicle and Traffic Law §101(2)].
That a police vehicle is an emergency vehicle is well settled. See
Wilmot v City of New York
, 73 AD2d 201 (1st Dept 1980). Emergency
vehicles engaged in emergency operations are granted a qualified exemption from
the usual rules of the road, allowing their operators greater ability to perform
their duties without fear of civil reprisal. See generally Saarinen v
, 84 NY2d 494 (1994). Police vehicles are further exempted statutorily
from the requirement to have alarms sounding or lights flashing, although there
may be regulations requiring engagement of emergency lights and sirens within a
reasonable time. Vehicle and Traffic Law §1104(c); see Mitchell v
State of New York
, 108 AD2d 1033, 1034-5
(3d Dept 1985) lv denied
64 NY2d 611 (1985). The statute governing the
standard of care to be applied when a police officer is engaged in an emergency
operation states in pertinent part that
“[t]he foregoing provisions shall not relieve the driver of an
authorized emergency vehicle from the duty to drive with due regard for the
safety of all persons, nor shall such provisions protect the driver from the
consequences of his reckless disregard for the safety of others.” Vehicle
and Traffic Law §1104(e).
What constitutes reckless disregard for the safety of others is described as
analogous to the “. . . tort concept of recklessness, . . . defined as the
conscious or intentional doing of an act of an unreasonable character in
disregard of a known or obvious risk so great as to make it highly probable that
harm would follow, and done with conscious indifference to the outcome . . .
(citations omitted).” Szczerbiak v Pilat, 90 NY2d 553, 557
(1997). The court looks at whether there is something “. . . in the
officer’s conduct demonstrating that he intentionally committed acts of an
unreasonable character . . .”, thus speeding alone or violation of
department policies alone, does not raise the conduct at issue from negligence
to reckless disregard. Powell v City of Mount Vernon, 228 AD2d 572 (2d
Dept 1996), lv denied, 89 NY2d 807 (1997).
As presented herein, there is no evidence of negligence on the part of the
State’s agents, let alone reckless disregard. Mr. Schlagler’s
deposition is equivocal at best as to the events prior to his waking up in the
hospital. He did not know whether his vehicle was struck by a State Police
vehicle, and more specifically recalled being pursued by a local police vehicle,
and that whatever police vehicles were involved had emergency lights flashing.
If a police car came alongside Mr. Schlagler as he indicated, he could not say
whether it was a State or local police vehicle. If a police car even chased
him, he cannot say whether it was a local or state vehicle, and there is no
other evidence of State involvement in the papers presented. Claimant himself
has not provided any information concerning the happening of the accident aside
from that set forth in the accident report he filled out. His report and
Trooper King’s say nothing about a pursuit. It is the claimant’s
application for leave of court at issue here, and the claimant’s burden
to establish entitlement to late claim relief.
Accordingly, given the elements required to establish a cause of action under
these circumstances, particularly the element of reckless disregard for the
safety of others, claimant has not established the appearance of merit, because
he has failed to establish that his claim is not patently groundless, frivolous
or legally defective, and consideration of the entire record presented indicates
that there is no reasonable cause to believe that a valid cause of action
exists. Matter of Santana v New York State Thruway Auth., supra.
Together with consideration of the prejudice to the State, and the inherent
limitations on the State’s ability to properly investigate the incident at
this late date, the factors weigh against granting the motion.
Based on the foregoing, and after careful consideration of all pertinent
factors, claimant’s motion for permission to serve and file a late claim
[M-73831] is in all respects denied.
October 31, 2007
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. Court of Claims Act § 10(6) states in
pertinent part: “ . . . The claim proposed to be filed, containing all of
the information set forth in section eleven of this act, shall accompany such
application . . .”
. “Although it is undisputed that
Trooper Benjamin was not then using his siren and emergency lights [during a
high speed chase], in contravention of departmental regulations, his failure to
do so at that time, even if considered negligent, cannot be said to have risen
to the level of reckless disregard for the safety of others, which is the
standard required to find him responsible for the accident . . . (citation
), as found by the Court of Claims.”