New York State Court of Claims

New York State Court of Claims

York Insurance v. THE STATE OF NEW YORK, #2007-044-538, Claim No. None, Motion No. M-73043


Synopsis


Court granted claimants' request for permission to file late claim regarding loss of tractor trailer which fell into a chasm when a culvert under I-88 collapsed in heavy flooding. Three claims were already pending before the Court stemming from the same incident, and defendant conceded that factors of notice, opportunity to investigate, substantial prejudice and merit were not in issue. Although the delay in filing was not excusable, the other factors weighed substantially in claimants' favor.

Case Information

UID:
2007-044-538
Claimant(s):
YORK INSURANCE COMPANY OF MAINE, a wholly owned subsidiary of ONE BEACON INSURANCE COMPANY, and ONE BEACON INSURANCE COMPANY, both individually and as subrogors of MICUCCI WHOLESALE GROCERS, and MICUCCI WHOLESALE GROCERS, Individually
Claimant short name:
York 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-73043
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
RAS ASSOCIATES, PLLCBY: Luis F. Ras, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 15, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants move for permission to file a late claim pursuant to Court of Claims Act § 10 (6) for property damages sustained when a tractor trailer owned by claimant Micucci Wholesale Grocers (Micucci), and insured by claimants York Insurance Company of Maine and One Beacon Insurance Company, fell into a chasm created by the collapse of a culvert under New York State Interstate 88, a highway owned and maintained by defendant State of New York (defendant). Claimants also request that service and filing of the proposed claim be deemed completed upon the anticipated granting of the motion. Defendant opposes the motion. The accident occurred on June 28, 2006 during a heavy rainfall which caused severe flooding throughout the State of New York and the Northeast. Not only was the tractor trailer that is the subject of the instant motion destroyed when the culvert collapsed, but two truck drivers were killed and another tractor trailer also was destroyed. The State Police recovered the bodies of the drivers and conducted an investigation immediately. There are currently at least three claims pending before this Court involving that incident, all of which were timely filed.

A motion seeking permission to file a late claim must be filed within the statute of

limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). The proposed claim filed with claimants' motion papers sets forth a cause of action for negligence, for which the statute of limitations is three years from the date of accrual

(CPLR 214 [4]). The accident took place on June 28, 2006. Accordingly, this motion which was filed on March 9, 2007 is timely.

The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances

underlying the claim;
4) the claim appears to be meritorious;
5) 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 defendant; and
6) claimants have any other available remedy.

Defendant appropriately concedes that the factors involving notice, opportunity to investigate, substantial prejudice and merit are not in issue,[1] particularly in light of the other pending and factually related claims. Defendant does not address the issue of whether claimants have any alternative remedy, and it does not appear that any such remedy exists. Defendant does argue that the delay in properly and timely serving a notice of intention and subsequent claim is inexcusable. Claimants respond that the delay in timely filing is due to the out-of-state status of Micucci, but also contends that even if the delay was inexcusable, the other five factors weigh in their favor and the motion should be granted in the interests of justice.

While claimants' delay may not have been excusable, the other five factors - including the all-important factor of merit - clearly and substantially weigh in claimants’ favor. Claimants' motion for permission to file and serve a late claim is hereby granted. The Court would note, however, that filing and service of the claim must be accomplished pursuant to the strict requirements of the Court of Claims Act, and that the portion of claimants' motion requesting that the proposed claim be deemed filed and served is consequently denied.

Claimants are hereby directed to serve and file a claim within 30 days of the filing of this decision and order.

May 15, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimants’ motion:

1) Notice of Motion filed on March 9, 2007; Affirmation of Luis F. Ras, Esq., dated March 5, 2007, and attached Exhibits A through F.

2) Affirmation in Opposition of Joseph F. Romani, AAG, dated April 17, 2007.

[1]. Affirmation in Opposition of Joseph F. Romani, Assistant Attorney General, ¶ 5.