New York State Court of Claims

New York State Court of Claims

ALLSTATE INSURANCE v. THE STATE OF NEW YORK, #2007-042-502, Claim No. NONE, Motion No. M-72600


Synopsis


Claimant brings this motion seeking permission to file a late claim pursuant to Court of Claims Act Section 10 (6). The underlying claim involves a property damage subrogation loss. Claimant’s motion for leave to file a late claim is denied.

Case Information

UID:
2007-042-502
Claimant(s):
ALLSTATE INSURANCE COMPANY, AS SUBROGEE OF, KIRK BALDWIN
Claimant short name:
ALLSTATE INSURANCE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72600
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
ROBERT G. MAZEAU LAW FIRMBy: YING HUA HUANG, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 5, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant brings this motion seeking permission to file a late claim pursuant to Court of Claims Act Section 10 (6). The following papers were considered by the Court:

  1. Notice of Motion, filed December 1, 2006
  2. Affidavit [incorrectly titled an "Affirmation"] of Ying Hua Huang, Esq., sworn to November 29, 2006
  3. Exhibits A - D, annexed to the moving papers
  4. Opposition affirmation of Joel L. Marmelstein, Esq., dated December 19, 2006
________________________________________________



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 York.

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[1]; c) a “Notice of Claim”, which claimant’s counsel again fails to mention in either her affidavit or the claim; and d) the proposed claim.

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 remedy.


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 is denied.



March 5, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1]. Claimant’s counsel also submitted a “Memorandum of Law in Support of Motion to File Late Claim”. The memorandum is far more expansive of the facts than either the attorney’s affidavit or the claim. Nevertheless, the memorandum of law is not part of a record on appeal, and any “facts” in the memorandum which are not contained in either the affidavit of counsel or the claim are not going to be considered by the Court. Parenthetically, and for purposes of clarity, it should be noted that in the memorandum, it is stated that the Department of Transportation knew about the problem with the traffic signal - presumably as a result of notification by a police officer - and that Exhibit B is the report generated by the Department of Transportation. In the memorandum it is further stated that the claimant attempted to file a notice of claim on February 7, 2006 by sending the notice to the New York State Department of Transportation. However, there are no supporting factual allegations regarding these last two statements, and again, they are only contained within the memorandum of law, which is not evidence admissible on the motion.