New York State Court of Claims

New York State Court of Claims

CRAWFORD v. STATE OF NEW YORK, #2007-037-027, Claim No. NONE, Motion No. M-73291


Motion to late file a claim denied. Movant failed to show that she sustained “serious injuries” as defined by the Insurance Law as a result of her motor vehicle accident.

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:
Young & YoungBy: Mark H. Young, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. Lonergan, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 18, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Movant’s motion for leave to late file a claim pursuant to § 10 (6) of the Court of Claims Act:
1. Notice of motion and supporting affidavit of Mark H. Young, Esq., sworn to April

26, 2007, with annexed Exhibits A-C;

2. Opposing affidavit of Assistant Attorney General William D. Lonergan, sworn to

June 4, 2007, with annexed Exhibit A.

Movant brings this motion for leave to file and serve a late claim for personal injuries arising out of a motor vehicle accident which occurred on March 8, 2006 when the Movant’s vehicle, allegedly proceeding with a green light, struck a van owned by the New York State Department of Correctional Services (DOCS) and driven by a New York State Correction Officer at or near the intersection of Harlem Road and Main Street in the Town of Amherst, New York. At the time of the accident, the van being driven by the New York State Correction Officer allegedly ran a red light at the intersection (see proposed claim, Movant’s Exhibit C, and the police report, Movant’s Exhibit A).

Pursuant to § 10 (6) of the Court of Claims Act, a motion for permission to late file a claim must be brought within the period of time when “a like claim against a citizen of the state” would not be precluded by the applicable CPLR Article 2 statute of limitations. Under CPLR § 214, a negligence claim must be commenced within three years of accrual of the claim. Because the motion herein was brought within three years of March 8, 2006, the accrual date, it is timely.

Court of Claims Act 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of many factors including: 1) whether the delay in filing and serving 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 to be meritorious; 5) whether substantial prejudice to the State resulted from the failure to timely serve a claim upon the Attorney General; and 6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

The first factor to be considered by the Court is whether the delay in filing and serving the claim was excusable. Movant offers no excuse for her failure to commence an action within 90 days of accrual of the claim as mandated by §§ 10 and 11 of the Court of Claims Act. This factor, thus, weighs against granting Movant’s motion.

The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movant argues that the State had notice and an opportunity to investigate because the subject accident involved a State owned vehicle being driven by a New York State Correction Officer. The Court agrees and Defendant so concedes. Similarly, the Court agrees that Movant has no other remedies other than a claim against the State. These factors, thus, weigh in favor of Movant’s motion.

The next and often considered the most decisive factor is merit as it would be futile to allow a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). Movant alleges that her claim is meritorious because her property damage claim was allegedly settled by the State. Contrary to Movant’s assertion, the documents annexed to Movant’s motion papers do not reflect a property settlement with the State. Moreover, an offer of settlement, if one had been made, does not constitute an admission of liability (see Casey v State of New York, Ct Cl, January 19, 2001, Corbett, J., Claim No. 95996, UID # 2001-005-001).[1]

Defendant argues that Movant has failed to meet her burden of showing that her proposed claim is meritorious because there is no indication that Movant sustained a “serious injury.” Insurance Law § 5102 (d) defines “serious injury” as:
“a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”
In the unsigned, unverified proposed claim, it is generally alleged that Movant suffered a serious injury and in the April 26, 2007 affidavit of Movant’s counsel it is alleged that Movant sustained “serious injuries to her eyes; shoulder; upper arm; hand; a contusion on face, scalp and neck; and a contusion on her chest wall” (see ¶ 6, affidavit of Mark H. Young, Esq.) It is seriously doubted whether these injuries as alleged are sufficient to constitute a serious injury under the Insurance Law. More importantly, the unsupported and conclusory statements submitted on this motion are insufficient to even suggest that the No-Fault threshold has been met. An affidavit containing a showing of evidentiary facts by a physician competent to attest to the extent of the Movant’s injuries should generally accompany a motion to late file (Matter of Edwards v State of New York, 119 Misc 2d 355 [1983]). In other situations hospital records will suffice (see generally Goldstein v State of New York, 75 AD2d 613 [1980]). However, without proof that Movant sustained a serious injury as defined by the Insurance Law, this Court can not conclude that there is reasonable cause to believe that a meritorious cause of action exists, and it would be an abuse of this Court’s discretion to grant Movant’s motion for permission to late file and serve a claim (see Richards v State of New York, Ct Cl, March 27, 2006, Schweitzer, J., Claim No. None, Motion No. M-70768, UID # 2006-036-504; Bohl v State of New York, Ct Cl, October 14, 2005, Collins, J., Claim No. None, Motion No. M-70515, UID # 2005-015-045). Accordingly, it is hereby

ORDERED, that Movant’s motion no. M-73291 for leave to late file a claim is denied, without prejudice.

June 18, 2007
Buffalo, New York

Judge of the Court of Claims

[1]. This and other unreported Court of Claims decisions may be found on the court’s web site at