New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2008-010-002, Claim No. NONE, Motion No. M-74438


Movant’s application for leave to serve and file a late claim is granted. Appearance of merit shown.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 2, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on movant’s application for leave to serve and file a late claim:
Notice of Petition, Attorney’s Supporting Affirmation, Movant’s Supporting Affidavit and Exhibits...............................................................................................1

Affirmation in Opposition and Exhibits...................................................................2

Reply Affirmation and Exhibits................................................................................3

The proposed claim arises out of a motor vehicle accident which occurred on May 30, 2007, at approximately 4:00 p.m. at the intersection of Wickham Avenue and Liberty Street in the City of Middletown (Movant’s Papers, Ex. D). According to movant’s supporting papers, movant’s stopped pickup truck was struck in the rear by a State-owned vehicle operated by a State employee, Judith Koerber. Movant includes a copy of the Police Accident Report (Movant’s Papers, Ex. A) which indicates that movant was proceeding with a green light ahead when he stopped his vehicle because a school bus was discharging children. The report further states that Koerber stated that “she saw [movant] going forward at the light then looked down at her calendar book and didn’t see [movant] stopping for the school bus” (id.).
Movant retained counsel on August 2, 2007; however neither a notice of intention nor a claim were filed within the 90-day time period after the claim had accrued on May 30, 2007. On October 24, 2007, movant’s attorney submitted a FOIL request to obtain the necessary information to prepare a late claim application (Movant’s Papers, Ex. B). Movant’s attorney received a response by letter dated November 20, 2007. Approximately three months later, movant’s attorney presented this late claim application.[1] Movant’s attorney concedes that there is no reasonable excuse for the delay in failing to either serve a notice of intention or to serve and file a claim within 90 days of the accident. Nonetheless, the reasonableness of the delay is but one factor to be considered and it is not determinative of the motion.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy.

The Court has considered the above six factors. As noted supra, the movant has not presented a valid excuse for his delay (see Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854). However, the most significant factor to be considered is the appearance of merit of the proposed claim. 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 (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Here, the movant has established an appearance of merit.

“A rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability against the operator of the rearmost vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” (Argiro v Norfolk Contract Carrier, 275 AD2d 384, 385; see also Danza v Longieliere, 256 AD2d 434, 435 [“defendant’s testimony to the effect that the accident was caused by the plaintiffs’ sudden stop was insufficient to rebut the presumption that he was negligent”]). “It was also the duty of the defendant to operate [its] automobile with reasonable care with regard to the actual and potential hazards existing from road and traffic conditions; to have [the] automobile under reasonable control; and to see that which, under the facts and circumstances, *** should have seen by the proper use of [her] senses” (McCarthy v Miller, 139 AD2d 500). Further, drivers are under a duty to maintain a safe distance between their vehicles and the vehicles in front of them (see Vehicle and Traffic Law § 1129[a]; Reed v New York City Tr. Auth., 299 AD2d 330, 332).

Upon review of the papers submitted, the Court finds that movant has shown the appearance of merit of his claim that, had Koerber not been negligent, she should have been able to avoid striking movant’s car (see Candela v Johnson, 48 AD3d 502 [driver who struck a stopped vehicle in the rear failed to come forward with a non-negligent explanation for accident]; Sass v Ambu Trans., 238 AD2d 570 [defendant breached duty to maintain a reasonably safe distance between himself and traffic he was following and to be aware of traffic conditions, including a stoppage in traffic caused by another driver several cars ahead of defendant]). Movant’s Reply Papers indicate that movant suffered physical injuries as a result of the accident (Movant’s Reply Papers, Ex. C).[2] It is noted, however, that the appearance of merit is limited to this Court’s ruling on the motion and that a heavier burden of proof rests upon movant to prevail at trial.

Upon consideration of all the factors, including the State’s failure to show that the delay substantially prejudiced defendant and that the State was not afforded the opportunity to timely investigate the circumstances underlying the claim, the Court finds that movant has made a sufficient showing to warrant granting his application. Accordingly, movant shall, within 45 days of this filed-stamped Decision and Order, serve and file a claim alleging the same facts and substance as set forth in movant’s supporting papers and in accordance with the Court of Claims Act §§ 11 and 11-a.[3]

May 2, 2008
White Plains, New York

Judge of the Court of Claims

[1]. The motion was adjourned to April 16, 2008 to afford movant the opportunity to reply to defendant’s untimely opposition papers (Movant’s Reply Papers, Ex. B) and to submit information on the issues of movant’s injuries and when counsel was retained.
[2]. At this time, the Court need not resolve the issue of whether movant’s injuries constitute a serious physical injury.
[3]. Notably, while it is undisputed that the movant’s vehicle was struck in the rear, the proposed claim fails to allege this with sufficient specificity.