New York State Court of Claims

New York State Court of Claims

CLARK v. THE STATE OF NEW YORK, #2007-040-053, , Motion No. M-71415


Synopsis


Motion to late file granted. Proposed Claim asserts pedestrian fell while crossing State road. Asserts plank movant used to cross a ditch in roadway was unsteady and movant fell and was injured.

Case Information

UID:
2007-040-053
Claimant(s):
PATRICIA A. CLARK
1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
CLARK
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-71415
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
JOHN P. KINGSLEY, P.C.By: John P. Kingsley, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael W. Friedman, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 17, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

For the reasons set forth below, the application of Movant, Patricia A. Clark, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted.

The proposed claim, attached to the motion papers, asserts that at or about 8:30 pm on August 22, 2005, Ms Clark was walking toward her home on Howell Street in the Town and Village of Catskill, Greene County, after parking her car on a nearby street because of construction. She had to cross a ditch approximately three-feet wide in order to reach her home. “While crossing the ditch she stood on a metal plank or board that was lower than the surface and unsteady when she walked up the metal plank” (Proposed Claim, ¶ 4). As a result of the unsteadiness of the metal bridge across the ditch, Movant fell and injured her foot.

In his affidavit submitted in support of Movant’s application, counsel asserts that he mailed a Notice of Claim to both the Town and Village of Catskill on November 21, 2005; that on January 5, 2006, he received a letter dated December 14, 2005 from Robert J. Wisniewski, a claims management specialist at Selective Insurance, the insurance company of the Village of Catskill (see Ex. B attached to Motion). According to Mr. Wisniewski, the reconstruction taking place on Howell Street was part of renovations to Route 9W under the supervision of the New York State Department of Transportation.

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed claim appears to assert causes of action for negligence (CPLR § 214[5]), a three-year Statute of Limitations applies and the motion is properly before the Court.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) 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, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). 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 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The Court finds Movant’s proffered excuse for the delay in timely filing and serving the claim – her lack of knowledge concerning ownership of the construction site – is not a reasonable excuse” (Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; see Rocco v State of New York, Claim No. None, Motion No. M-69543, Collins, J. [UID No. 2005-015-013] May 3,2005). 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 Sys. Policemen’s & Firemen’s Retirement Sys., supra at 981).

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. Defendant neither claims lack of notice, lack of opportunity to investigate, nor that it will be substantially prejudiced by a delay in filing a claim. 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, 1024 [4th Dept 1978]). These factors, therefore, weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. In this case, it appears that Movant does not have any alternate remedy, assuming the information provided by the Village of Catskill’s insurer is correct.

The sixth, final and perhaps most important factor to be considered is whether the proposed 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, 255 [2nd Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2nd Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s 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 Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).

At this stage of the proceeding, it should be noted, the Court generally takes as true factual allegations of a movant. Based upon the entire record, the Court finds that the proposed claim has the appearance of merit. Movant need only establish the appearance of merit; she need not prove a prima facie case at this stage of the proceedings.

Defendant’s counsel argues that the proposed claim is jurisdictionally defective because it does not comply with the requirements of Court of Claims Act § 11(b) in that it contains neither a total sum claimed nor a statement of Ms. Clark’s alleged injuries (Friedman affirmation in opposition, § 4). In Kolnacki v State of New York (8 NY3d 277 [2007]), the Court of Appeals held that the Court of Claims lacks jurisdiction over a claim which fails to state “the total sum claimed,” one of the requirements of § 11(b). Kolnacki stressed that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” (id. at 281).

On August 15, 2007, Governor Spitzer signed Chapter 606 of the Laws of 2007, which amended Court of Claims Act § 11(b) to except actions for “personal injury, medical, dental or podiatric malpractice or wrongful death” from the requirement that the claim state the total sum claimed. The act took effect immediately and has retroactive effect, providing that any claim pending on or after November 27, 2003 which would have been viable if the act was effective at the time the claim was filed shall not be dismissed for failure to state the total dollar amount of the claim. Thus, the failure to include the total dollar amount is not fatal to Movant’s application. The Court has reviewed the proposed claim and finds no merit to the State’s argument that Movant has not stated her alleged injuries. The proposed claim states that Ms. Clark fell and injured her foot.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (Ch. 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, 989 [1st Dept 1986]; Plate v State of New York, supra). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant her 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, Movant shall file with the Clerk of the Court her proposed claim against the State, and serve a copy of the proposed claim, with a more specific recitation of Movant’s injuries, upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the claim, Movant is 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.


October 17, 2007
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read on Movant’s application for permission to file a late claim:

Papers Numbered

Notice of Motion, Affidavit
Proposed Claim & Exhibits attached 1

Affirmation in Opposition 2