New York State Court of Claims

New York State Court of Claims

LYNCH v. THE STATE OF NEW YORK, #2007-030-577, Claim No. None, Motion No. M-73831


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

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
October 31, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 by Jon C. Dupee, Jr., Attorney for Claimant and attached exhibits

  1. Affirmation in Opposition for Leave to File Late Claim by Barry Kaufman, Assistant Attorney General and attached exhibits
  1. Reply Affirmation by Jon C. Dupee, Jr., Attorney for Claimant and attached exhibits
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 “they told

. . . [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., ¶7].

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.
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[2], 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 1999).

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 Kerr, 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[3] (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
White Plains, New York

Judge of the Court of Claims

[2]. 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 . . .”
[3]. “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 omitted), as found by the Court of Claims.”