New York State Court of Claims

New York State Court of Claims

ALLSTATE v. THE STATE OF NEW YORK, #2007-038-533, , Motion No. M-72543


Synopsis


Motion to file late claim granted. Law office failure an unacceptable excuse, but all other factors weighed in favor of movant.

Case Information

UID:
2007-038-533
Claimant(s):
ALLSTATE INSURANCE COMPANY, as Subrogee of Donald Caputo
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):

Motion number(s):
M-72543
Cross-motion number(s):

Judge:
W. BROOKS DEBOW
Claimant’s attorney:
ROBERT G. MAZEAU LAW FIRMBy: Ying Hua Huang, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 9, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Allstate Insurance Company (“movant”), as subrogee of its insured, Donald Caputo, seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6). The motion includes a proposed claim against the State of New York, the factual allegations of which are deemed true due to the absence of denial or contradiction in the State’s opposing papers (see Sessa v State of New York, 88 Misc 2d 454, 458 [Ct Cl 1976], affd on other grounds 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]). On May 5, 2006, a vehicle owned by Caputo was struck by a State-owned vehicle in a parking lot on the campus of State University of New York (SUNY) at Farmingdale. According to a report completed by a campus police officer, Caputo’s vehicle was unoccupied and legally parked at the time it was struck. The front right door of the vehicle was destroyed, for which the proposed claim seeks damages in the amount of $3,404.60.

Pursuant to Court of Claims Act § 10 (3), movant was required to file and serve upon the Attorney General the claim, or serve a written notice of intention to do so, within 90 days after the accrual of the claim, on May 5, 2006. The instant motion was filed on November 16, 2006, slightly more than three months after the expiration of the 90-day period. There is no dispute that the proposed claim is within its statute of limitations (see CPLR 214 [4]).

In deciding a motion to file a late claim, the Court must consider under Court of Claims Act § 10 (6) “whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.” The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV, Inc. v New York State Emp. Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court. The Court’s consideration of these factors will be addressed seriatim.

Movant’s submissions reveal that a “Notice of Claim” was not filed with the Court of Claims as required by Court of Claims Act § 10 (3), but was instead erroneously mailed to SUNY Farmingdale. Further, movant does not dispute defendant’s contention that the “Notice of Claim” was never served upon the Attorney General, and thus, there was not compliance with Court of Claims Act § 11. Movant’s failure to timely serve a written notice of intention or file and serve a claim was, at best, due to law office failure which, as defendant correctly contends, is not excusable (see Sessa v State of New York, supra; Allstate v State of New York, UID # 2007-018-562, Motion No. M-72490, Fitzpatrick, J. [Mar. 15, 2007]; Allstate Ins. v State of New York, UID # 2007-042-502, Motion No. M-72600, Siegel, J. [Mar. 5, 2007]; see also Spickerman v State of New York, 85 AD2d 60, 61 [3d Dept 1982]). The lack of an acceptable excuse for the late filing weighs against movant’s application.

Whether the State had notice of the essential facts underlying the proposed claim, whether it had an opportunity to investigate, and whether commencement of the claim beyond the allowable time period has resulted in substantial prejudice to the State are related factors that may be addressed together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Here, the State had timely notice of, and an opportunity to investigate the accident. Indeed, movant’s subrogor learned of the accident upon being contacted by the campus police at SUNY Farmingdale (see Affidavit of Regina Caputo, ¶ 4, sworn to February 8, 2007). Although defendant argues that it would be substantially prejudiced by a late claim, it does not articulate the specifics of that claimed prejudice.[1] The facts which give rise to the proposed claim are straightforward, and no measurable prejudice – much less substantial prejudice – due to movant’s failure to file the claim within the 90-day period is readily discernible. The location of the accident is clearly stated, and there is no allegation that the accident was caused by a defective or temporary condition in the parking lot that might have required prompt investigation. As noted above, the vehicle that was struck was unoccupied and legally parked. Defendant’s vehicle and the identity and home address of its operator are clearly identified in the accident report that was prepared by a SUNY police officer. Thus, it is does not appear that defendant would suffer substantial prejudice due to the three-month delay in filing and serving the claim (compare Adrian v Town of Oyster Bay, 262 AD2d 433 [2d Dept 1999]; Patellaro v City of New York, 253 AD2d 456 [2d Dept 1998]).

Whether a claim has the appearance of merit is perhaps the weightiest factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a potential litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). To establish the merit of a proposed late claim, movant need not demonstrate a likelihood that it will prevail on its claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not “patently groundless, frivolous or legally defective”; and (2) all of the evidence submitted on the motion establishes “reasonable cause to believe that a valid cause of action exists” (see Matter of Santana v New York State Thruway Auth., supra at 11). The State asserts that the dollar amount of damages sought in the Notice of Claim (which was never served upon the Attorney General) differs from the dollar amount in the proposed claim, but that apparent inconsistency does not speak to a lack of merit in the claim within the meaning of Court of Claims Act § 10 (6). Defendant further contends that the motion is not supported by a probative affidavit of movant’s subrogor. Movant’s reply papers include the affidavit of Regina Caputo, the subrogor’s spouse and the operator of the vehicle on the date of the accident, in which she sets forth facts establishing a prima facie case of negligence which established the merit of the proposed claim. Although this affidavit is submitted in movant’s reply papers and defendant has not responded to it, it is noted that delays in movant’s counsel’s procurement of this affidavit required two adjournments of the return date of the instant motion, to which defendant consented and thus, defendant essentially consented to movant’s submission of this affidavit in reply to its opposition to the motion.

Finally, defendant does not dispute movant’s contention that it lacks an alternative remedy for this claim in subrogation.

In sum, and upon review and consideration of the six factors set forth in Court of Claims Act § 10 (6), the Court concludes that even though movant lacks an acceptable excuse for the failure to timely file and serve a claim or to timely serve a notice of intention to file a claim, the weight of the factors favors granting the motion to file a late claim.

Accordingly, Motion No. M-72543 is GRANTED, and movant is directed to file and serve the proposed claim in accordance with Court of Claims Act §§ 11 and 11-a within 20 days of the date of filing of this decision and order.


May 9, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Notice of Motion, dated November 14, 2006;

(2) Affirmation of Ying Hua Huang, Esq., dated November 14, 2006, with exhibits A-C;

(3) Movant’s Memorandum of Law, dated November 14, 2006;

(4) Affirmation in Opposition of Todd A. Schall, Esq., dated January 31, 2007;

(5) Affirmation of Ying Hua Huang, Esq., dated February 22, 2007;

(6) Affidavit of Regina Caputo, sworn to February 8, 2007.


[1]. Defendant summarily states that the delay in filing – slightly more than three months – deprived it of an “opportunity to conduct a prompt and meaningful investigation of the circumstance [sic] underlying the claim while the facts are still recent” (Affirmation in Opposition of Todd A. Schall, Esq., dated January 31, 2007, at ¶ 11). This contention is unavailing because, as noted above, defendant did have an opportunity to conduct a timely investigation, and because this conclusory argument can be stated in opposition to every motion to file a late claim. In other words, the mere passage of time, without some demonstrable negative effect on defendant’s ability to defend the claim, does not satisfy the statutorily required showing of “substantial” prejudice at issue in a motion to file a late claim (see Court of Claims Act § 10 [6]; Remley v State of New York, 174 Misc 2d 523, 524 [Ct Cl 1997]; Chiclana v State of New York, UID # 2007-029-005, Motion No. M-72751, Mignano, J. [Jan. 24, 2007]; Rice v State of New York, UID # 2006-028-598, Motion No. M-71150, Sise, P.J. [Oct. 18, 2006]).