New York State Court of Claims

New York State Court of Claims

SPRINGER v. THE STATE OF NEW YORK, #2008-009-023, Claim No. 111361, Motion No. M-74961


Synopsis


Claimants’ motion for permission to file an amended claim and for late claim relief in order to add members to a previously certified class was granted.

Case Information

UID:
2008-009-023
Claimant(s):
TIMOTHY SPRINGER and JACQUELINE SPRINGER, Individually and on behalf of their Infant Children, ADAM SPRINGER, KELLY SPRINGER and RACHEL SPRINGER, and PHYLLIS ARROYO and JOHN ARROYO, Individually and on behalf of their Children, ALEX ARROYO, CHEYENNE ARROYO, and MCKENZIE ARROYO, and all other persons similarly situated
Claimant short name:
SPRINGER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111361
Motion number(s):
M-74961
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
DREYER BOYAJIAN, LLP
BY: Donald W. Boyajian, Esq., and
James R. Peluso, Esq., of Counsel.
UNDERBERG & KESSLER, LLP
BY: Paul V. Nunes, Esq., of Counsel.
MARLER CLARK, LLP, PSBY: Bruce T. Clark, Esq., of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Ed J. Thompson, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 29, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants have brought this motion seeking: permission to file an amended claim on behalf of certain prospective infant claimants; late claim relief on behalf of certain prospective adult claimants; expansion of a previously certified class to include those infant and adult claimants; and permission for the filing of their proposed Consolidated Second Amended Claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Attorney Affidavit of Donald W. Boyajian, Esq., with Exhibits 1,2

Memorandum of Law 3

Correspondence dated June 26, 2008 from Ed J. Thompson, Esq., Assistant Attorney General in Charge 4

This claim is based upon events which occurred during the summer of 2005 at the Seneca Lake State Park in Geneva, New York. In August, 2005, a “Spraypark” at this State Park was closed by the Department of Health, after a determining that the water at the Spraypark was contaminated with cryptosporidium, a contagious waterborne parasite. Claims were subsequently filed, seeking damages for those individuals who were exposed to this cryptosporidium parasite. Two of these claims, both of which sought class action status, were consolidated into the instant claim, and this claim was certified as a class action by a prior Decision and Order of this Court[1]. The class, however, was limited to those persons who had either served and filed a claim or served a notice of intention to file a claim.

By an Order dated January 3, 2007, this Court approved the Class Definition, appointed The Notice Company as Third Party Administrator, and directed The Notice Company to provide notice of this litigation to prospective class members.

After several other “interim” Decision and Orders, this Court, by an Order dated March 24, 2008, closed the class as of March 31, 2008, and directed claimants to provide defendant with a list of all persons who had submitted a request to join the class.

According to the papers submitted with this motion, there are now 1,837 putative infant and adult claimants who now seek to join this class. Of these, 1,020 have been identified as infants, while the remaining 817 prospective claimants are adults. All of the putative infant and adult claimants have been identified in the proposed Consolidated Second Amended Claim, submitted with this motion (see Exhibit A).

As this Court has previously indicated,[2] any claims of infants are tolled by reason of their disability and therefore, pursuant to Court of Claims Act § 10(5), may be presented at any time within two years after such disability is removed. As a result, late claim relief under Court of Claims Act § 10(6) for those potential claims of infants is unnecessary. Claimants’ counsel has satisfied the Court that the claims of the 1,020 putative infant claimants are timely, as these potential claimants are either presently under disability, or less than two years has elapsed since their disability was removed.

As previously noted, in addition to these potential infant claimants, however, 817 adult individuals have been identified as putative claimants who are not entitled to the tolling provisions of Court of Claims Act § 10(5). Claimants’ counsel has therefore requested that this Court grant late claim relief for these prospective claimants pursuant to Court of Claims Act § 10(6).

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Matter of Gavigan v State of New York, 176 AD2d 1117). The presence or absence of any one particular factor is not necessarily dispositive of any application (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979), and none of the factors can require denial as a matter of law.

This Court has previously indicated that the State would be hard-pressed to successfully contest the granting of late claim relief under the circumstances of this claim[3], and, in fact, the State has not contested this application (see Item 4). There can be no question that the State had notice of a potential claim and an opportunity to investigate the circumstances surrounding the potential claim, based upon the fact that the Spraypark was closed by the Department of Health in August, 2005, following an investigation by that department.

Furthermore, pursuant to the documentation provided by these putative claimants to the Notice Company, it appears that these potential claims are meritorious, and that these claimants would have no other available remedy.

Accordingly, the Court finds that late claim relief should be granted to the 817 putative adult claimants.

Since the class, as previously determined by this Court, consists of those persons who had previously served and filed a claim or served a notice of intention to file a claim, it is appropriate that the class be expanded to include these 1,020 putative infant claimants and the 817 putative adult claimants identified in this motion, all of whom have made a request to join the class. Similarly, claimants’ request to file their proposed Consolidated Second Amended Claim, including not only these claimants who had initially been approved as class members, but also now including the claims on behalf of the additional 1,837 infant and adult claimants identified in this motion, should also be granted.
Accordingly, it is

ORDERED, that pursuant to Court of Claims Act § 10(5), claimants may serve and file an amended claim to include infant claimants seeking to join the class; and it is further

ORDERED, that pursuant to Court of Claims Act § 10(6), claimants may serve and file an amended claim on behalf of the 817 adult claimants seeking to join the class; and it is further

ORDERED, that the class, previously defined by this Court, is hereby expanded to include the aforementioned infant and adult claimants; and it is further

ORDERED, that claimants’ request to serve and file their proposed Consolidated Second Amended Claim, set forth as Exhibit A to this motion, is hereby granted, and claimants shall serve and file such claim within 30 days from the date of filing of this Decision and Order.


September 29, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. See Decision and Order filed July 12, 2006, Arroyo v State of New York, Claim No. 111362, Motion No. M-71063, Springer v State of New York, Claim No. 111361, Motion No. M-71115, Ct Cl, June 29, 2006, http://www.nyscourt(12 Misc 3d 1197 [A]).
[2]. See Decision and Order dated June 29, 2006 (See Footnote 1).
[3].See Decision and Order dated November 17, 2005. Springer v State of New York, Ct Cl, Midey, J., Claim No. 111361, Motion No. M-70742 and Cross Motion No. CM-70755, UID #2005-009-053). (Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/).