Motion to file late claim granted.
|Claimant(s):||RONALD H. BACKER, BRUCE E. BACKER, XAR CORPORATION, ALBANY PARKING SERVICES, INC. and SHERIDAN PARKING, LLC|
|Claimant short name:||BACKER|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Herzog, Engstrom & Koplovitz, PC
By: Keith J. Roland, Esq.
and Seth D. Finkell, Esq.
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Michael W. Friedman, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||January 26, 2007|
|See also (multicaptioned case)|
For the reasons set forth below, Movants' application to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted.
Movants have submitted a proposed claim and the Affidavit of Ronald H. Backer, one of the Movants. The motion papers assert that Movants, individually and in various combinations, own and/or operate a number of parcels on Sheridan Avenue and Spruce Street in the City of Albany as part of a parking business. The proposed claim asserts that the State, through its agent, Turner Construction Company (hereinafter "Turner") and/or Turner's affiliates, subsidiaries, agents and/or subcontractors, constructed a parking garage for the State on Spruce Street and Sheridan Avenue in Albany (hereinafter "Parking Facility") in close proximity to the Movants' properties; that, on or about April 8, 2005, and continuing thereafter, the Movants suffered property damage, consequential damages, remediation costs, expenses, and other damages as a direct result of the Parking Facility construction work performed by Defendant.
It is alleged that, as a result of Defendant's and Turner's conduct, significant amounts of soil and subsurface moved and shifted in a downward (northerly) direction on Movants' properties from Spruce Street toward Sheridan Avenue, and that such shifting caused Movants' properties to buckle, sink, crack, and move in such a manner as to render large portions of the properties unusable for safety reasons; that, on or about April 8, 2005, the City of Albany notified Movants that the properties were being closed as a matter of public safety due to an alleged "slip failure" of, on, and about such properties, resulting in damage to those properties; that the City of Albany continues to prohibit all use of large portions of such properties because of unsafe conditions, and, as a result, Movants have lost significant revenues from the parking business conducted on the subject properties for which they have not been able to charge rent (Proposed Claim, ¶¶ 24 and 26).
In determining whether to grant a motion to file a late claim, Subdivision 6 of Section 10 of the Court of Claims Act sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033). The Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).
The first factor to be considered is whether the delay in filing the claim was excusable. While Movants have not offered an excuse for their failure to timely file a claim, there is an assertion that the motion is necessary because of defects in a notice of intention that was served upon the Attorney General in June 2005. The Court finds that the proffered excuse is not reasonable. However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, supra).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together. The State neither claims lack of notice, nor lack of opportunity to investigate, nor that it will be prejudiced substantially by a delay in filing a claim in this matter. The State cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023). These factors weigh in Movants' favor.
The fifth factor to be assessed is whether Movants have any other available remedy. In this case, it appears Movants do not have any alternate remedy.
The sixth, final and perhaps most important factor to be considered is whether the claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967; Edward C. Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438). It is Movants' burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movants to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movants to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra).
At this stage of the proceedings, it should be noted the Court generally takes as true the factual allegations of a movant. Based upon the entire record, the Court finds that the causes of action have the appearance of merit. Movants need only establish the appearance of merit; they need not prove a prima facie case at this stage of the proceedings. The Court rejects the State's argument that the proposed claim lacks the appearance of merit because it does not comply with the requirements of Court of Claims Act §11(b) in that it "does [not] contain a [sic] addendum amount of the total damages claimed" (Friedman Affirmation in Opposition, ¶ 3). The Appellate Division, Second Department in Beckley-Kamara v State of New York (__ AD3d __, 12/26/06) held that:
"claimant's failure to state the 'total sum claimed' does not require dismissal of the subject claim (see Court of Claims Act § 11[b]; Kolnacki v State of New York, 28 AD3d 1176; Morris v State of New York, 27 AD3d 282, 283; cf. Lepkowski v State of New York, 1 NY3d 201, 208-209; Mujica v State of New York, 24 AD3d 898, 899)."
The Court concludes that if the failure to state the total sum claimed does not require dismissal of a claim, then it does not affect a proposed claim's appearance of merit (see also, Morris v State of New York, 27 AD3d 282; Herbert v State of New York, 13 Misc 3d 1237[A]).
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movants' favor. The mix of circumstances presented by this case falls well within the remedial purposes of the amendment to the Court of Claims Act enacted in 1976 (Chapter 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988; Plate v State of New York, 92 Misc 2d 1033). Movants have provided ample basis for a favorable exercise of this Court's discretion to grant them leave to file a late claim against the State. Therefore, within forty-five (45) days of the date of filing of this decision and order, Movants shall file their proposed claim against the State with the Clerk of the Court and serve, by personal service or by certified mail, return receipt requested, a copy of said proposed claim, properly verified, upon the Attorney General. In serving and filing the claim, Movants are directed to follow all of the requirements of the Court of Claims Act, including § 11-a regarding the filing fee, and the Uniform Rules for the Court of Claims.
January 26, 2007
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered on Movants' request for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6):
Notice of Motion, Affidavit in Support
and Exhibits Attached 1
Affirmation in Opposition 2