This matter comes before the court on a motion by claimant seeking permission
to file a late claim, pursuant to Court of Claims Act Section 10 (6). The State
opposes the motion.
The underlying claim involves a property damage subrogation loss. Claimant
Allstate Insurance Company (hereinafter referred to as “Allstate”)
is the subrogee of its insured, Kirk Baldwin. In support of this motion,
claimant relies upon the affidavit of its counsel, with hearsay exhibits
attached thereto, and an unverified proposed claim.
According to claimant’s counsel’s affidavit, the claim arises out
of an intersection automobile accident which occurred on January 27, 2006.
Claimant’s subrogor’s vehicle allegedly was struck by another
vehicle at the intersection of State Route 5 and Route 5B in New Hartford, New
The unverified claim states that the New York State department involved is the
Department of Transportation. There is no specific allegation of negligence on
the part of the Department of Transportation. Rather, in a portion of the claim
titled “Accident Description” the claim merely states that
“Subrogor’s vehicle was struck by another vehicle because of a
problem with the traffic signal at the intersection of State Route 5 and
Route 5B, New Hartford, NY [emphasis added]”.
There are no exhibits or attachments to the claim to amplify the claim.
However, the attorney’s affidavit attaches as its exhibits a) a photocopy
of what is purported to be the police accident report; b) an untitled and
partially illegible sheet of paper, which claimant’s counsel does not
mention in either her affidavit or the claim
c) a “Notice of Claim”, which claimant’s counsel again fails
to mention in either her affidavit or the claim; and d) the proposed
The defendant opposes the motion and, in opposition, argues that claimant has
failed to meet any and all of the statutory criteria applicable to an
application for permission to late file a claim.
Court of Claims Act § 10 (6) provides, in relevant part, that:
[i]n determining whether to permit the [late] filing of a claim . . . the court
shall consider, among other factors, 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
The presence or absence of any one factor is not dispositive in the
court’s consideration of a late claim motion (see, Bay Terrace Coop.
Section IV v New York State Employees’ Retirement System Policemen’s
& Firemen’s Retirement System, 55 NY2d 979; Rice v State of
New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150).
Additionally, the court is afforded broad discretion in its determination, and
in its consideration of the statutory factors. Gonzalez v State of New
York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512,
Claim No. NONE, Motion No. M-67159.
Turning to the first statutory factor of reasonable excuse, there is no excuse
offered. Even if the assertion in the memorandum of law - that an attempt of
service of a notice of claim was made upon the Department of Transportation -
was considered, it would at best suggest ignorance of the law or law office
failure. Either excuse is inadequate. Nyberg v State of New York, 154
Misc 2d 199, 200; Passarell v State of New York, UID No. 2002-013-029,
Motion No. M-65031; see, Erca v State of New York, 51 AD2d 611,
affd 42 NY2d 854.
The next three statutory factors of notice of essential facts, opportunity to
investigate, and substantial prejudice are generally considered together.
Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No.
M-67159; Yamaoka v State of New York, 10 Misc 3d 1059 (A).
There is no proof offered that the defendant had any notice of this incident
until the filing of this motion. Even if the court was to consider the
aforementioned mailing of the purported notice of claim to the Department of
Transportation, there is no proof of its actual mailing or proof that it was
received; and, in any event, it was not served upon the Attorney General.
Likewise, the mere mention by an unidentified officer of an unidentified police
agency in unsworn photocopy of a police report that “NY State Dept of
Transportation was notified of the problem” is not proof of notice of
essential facts. The notation does not indicate that a person of authority
within the department was notified and does not indicate that the department was
notified with any particularity about the “problem” (see,
Passarell v State of New York, UID No. 2002-013-029, Motion No. M-65031).
Most importantly, this police report itself is hearsay and is not identified in
either the moving attorney’s affidavit or the claim. Even if the
information from the police report was given to the appropriate Department of
Transportation official, such transmittal of the information would not
constitute notice as contemplated by the statute, as it does not establish that
this notice would have apprised the department that litigation was being
contemplated (see, Wolf v State of New York, 140 AD2d 692; Passarell
v State of New York, UID No. 2002-013-029, Motion No. M-65031). The state
is entitled to the opportunity to perform a timely investigation, which
opportunity was denied to it in this case.
Furthermore, there is nothing in the motion papers or the claim which
identifies the exact nature of the claim against defendant. The claim itself is
devoid of any allegation of either wrongdoing or negligence on the part of the
state. The only allusion whatsoever to responsibility on the part of defendant
is the reference to “a problem with the traffic signal”. The claim
is insufficient as a matter of law. In facts far more compelling than those
presented here, the court found the allegations contained within the claim to be
inadequate to state a cause of action:
[t]he notice of intention filed by the proposed claimant in his individual
behalf broadly asserts that the injuries resulted from “the defective
design, maintenance and repair of the Southern State Parkway.” While each
notice of intention [which the proposed claimant sought to have treated as
claims] may provide sufficient notice of the factual occurrence to enable the
State to investigate, more is required of a claim [citations omitted]. A claim
must assert a cause of action, indicating the legal basis upon which the State
is alleged to be liable [citation omitted]. Neither notice of intention
factually states what defect caused the accident or the precise nature of acts
of State employees or agents giving rise to liability. The notices of
intention, therefore, fail to assert a cause of action against the State and
cannot be treated as claims (see, Patterson v State of New York, supra
[54 AD2d 147, affd 45 NY2d 885]; Artale v State of New York,
140 AD2d 919; De Hart v State of New York, supra [92 Misc 2d 631]).
Bonaparte v State of New York,
175 AD2d 683, 684.
Nothing has been submitted to the court on this application by anyone with
knowledge or familiarity of the facts. As in Nyberg v State of New York,
154 Misc 2d 199, this motion is supported solely by affidavit of
claimant’s counsel and an unverified proposed claim. In seeking
permission to file a late claim in Nyberg, claimant presented only a lay
opinion (that of counsel) that negligent construction and design of a highway
resulted in injury and wrongful death to the proposed claimant’s decedent.
The court found the lay opinion of counsel insufficient to grant the application
to late file a claim.
Declining to grant a subrogee’s application to late file a claim in
One Beacon v State of New York, UID No. 2004-034-514, Motion No. M-67924,
the court stated that:
. . . from review of the submissions the Court cannot find reasonable cause to
believe that a valid cause of action exists. Ordinarily, such a review would
extend to the entire record, including the proposed claim and all affidavits and
exhibits (see Matter of Santana v New York State Thruway Auth., 92 Misc
2d at 11), with the allegations therein deemed true for purposes of the motion
(see Jolley v State of New York, 106 Misc 2d 550, 551). However, that
rule regarding the presumptive truth of allegations “benefits only the
statements of an individual who has the knowledge or expertise required to
support the cause of action pleaded” (Jolley v State of New York,
106 Misc 2d at 551-552).
In sum, the unverified claim and the attorney’s affidavit are
insufficient to state a meritorious cause of action. Further compounding this
shortcoming is the lack of an expert’s affidavit. The sole basis upon
which it is claimed that the state should be liable is a “problem with the
traffic signal”. This layperson’s conclusion, made in an unverified
claim, will not sustain the claim (see Klingler v State of New York, 213
AD2d 378; Nyberg v State of New York, 154 Misc 2d 199; Jolley v State
of New York, 106 Misc 2d 550).
The only statutory standard upon which the proposed claimant can arguably
succeed is the probability that claimant has no other remedy (though unrecouped
losses are both expected and foreseen in the insurance business). Otherwise,
claimant has failed in meeting the standards set forth in Court of Claims Act
Section 10 (6).
“Unlike a party who has timely filed a claim, a party seeking to file a
late claim has the heavier burden of demonstrating that the claim appears to be
meritorious” (Kyle v State of New York, UID No. 2000-010-045, Claim
No. NONE, Motion No. M-61941). Claimant has failed to meet that burden. Having
weighed all the factors, claimant’s motion for leave to file a late claim