New York State Court of Claims

New York State Court of Claims

MELLOH v. THE STATE OF NEW YORK, #2008-015-106, Claim No. NONE, Motion No. M-75450


Late claim application was granted. Proposed claim alleging injuries were sustained in full from State van had the appearance of merit and totality of factors weighed in favor of granting motion.

Case Information

1 1.The caption of the claim is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of the claim is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Ricardo J. Mauro, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 15, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that on December 11, 2006 movant fell and sustained personal injuries while disembarking from a van operated by Third Age Van Service. It is alleged that Third Age Van Service is "maintained and supervised by Third Age Adult Day Center and the State of New York " (see movant's Exhibit E, proposed claim, ¶ 4). Movant's affidavit submitted in support of her motion states that at the time of her accident she was returning home after performing volunteer work. Ms. Melloh states "[w]hen I arrived at the destination, through the driver's negligence, I fell out of the van, striking my face, right knee and fracturing my hip" (affidavit, ¶ 6). According to the movant the van driver was negligent in failing to:

"a. drop me off at the designated handicap drop-off location;

b. have adequate equipment to drop me off on the curb rather than the roadway;

c. provide any disembarking assistance; and
d. stop to assist me when it was obvious that I fell out of the van and was not stable" (movant's Affidavit In Support, ¶ 7).

Similar allegations of negligence are alleged in the proposed claim (see movant's Exhibit E, ¶ 11).

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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 first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Since the proposed claim asserts a negligence cause of action, the three year statute of limitations set forth in CPLR § 214 applies. Movant's application for late claim relief was made well within this time frame and is, therefore, timely.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).

Movant and her attorney ascribe the delay in filing the claim to movant's failure to timely contact her attorney and difficulty and delay in determining the extent to which Third Age Adult Day Center and Third Age Van Service were affiliated with the State of New York.

Movant first contacted her attorney on July 16, 2007 - seven months after the accident occurred. Movant's counsel attributes the failure to seek timely legal advice to movant's depression, referring to a Discharge Assessment indicating movant suffered from a "depressed mood" following the accident. The assessment was unsigned, does not appear to have been completed by a physician and, in any event, indicates that movant did not suffer from a memory deficit or other psychosocial disability (see movant's Exhibit D, p. 6). In these circumstances, the Court is unpersuaded that the movant's seven-month delay in contacting her attorney was reasonable.

With regard to the relationship between Third Age Adult Day Center/ Third Age Van Service and the defendant, it appears counsel for the movant, once contacted by the movant, delayed an additional six months before performing any investigation regarding the matter. In January 2008 movant's counsel contacted an unidentified Assistant Attorney General and was informed, apparently in error, that the van service and day center were not operated by the State of New York. An action was thereafter commenced in the Supreme Court, County of Clinton, on May 19, 2008 due to counsel's mistaken belief that Third Age Adult Day Center/Third Age Van Service were private sector entities (see movant's Exhibit A). Issue was joined on June 12, 2008. On June 16, 2008 counsel for the movant contacted the Assistant Attorney General defending the case in Supreme Court and learned, for the first time, of an affiliation, undefined at this time but not denied by the defendant in opposing the motion, between the Third Age entities and the State.

The Court does not find movant's excuses for the delay in filing the claim to be reasonable. No reasonable excuse is offered for the movant's seven-month delay in contacting an attorney or the additional six month delay by movant's counsel in undertaking any investigation as to the ownership and operation of the van which allegedly caused the accident (cf. Matter of Robinson v State of New York, 35 AD3d 948 [2006] [inmate's ignorance of the law is not an acceptable excuse for the delay in filing a claim]; Matter of Duffy v State of New York, 264 AD2d 911 [1999]; [movant's ability to file a notice of intention, though late, belied his contention that he was unable to timely file a claim because he was bedridden and no excuse was given for the failure to file a claim in the one-month prior to the movant's initial hospitalization]). The absence of a reasonable excuse weighs against the movant in determining the motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant's counsel contends that the State of New York should have had notice of the facts giving rise to the claim when the movant fell out of the van and that the State should not be permitted to benefit from the fact that the driver left the scene without completing an accident report. In opposition to the motion, the State failed to establish or even assert that it did not have notice of the accident, that it was deprived of the opportunity to investigate, or that the failure to serve a timely claim resulted in substantial prejudice to the State (see Matter of Donaldson v State of New York, 167 AD2d 805 [1990]). These factors therefore weigh in favor of the movant.

With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not "patently groundless, frivolous, or legally defective" and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [1977]). In the Court's view the movant herein has met this minimal threshold.

As to the final factor to be considered, it appears that no alternative remedy exists. Consideration of the totality of factors set forth above leads this Court to conclude that the motion for late claim relief should be granted. The claim shall be filed and served as provided in Court of Claims Act §§ 11 and 11 (a) within 30 days of filing of a copy of this decision. Notably, the reference in the proposed claim to a trial by jury should be deleted (see Court of Claims Act § 12 [3]).

December 15, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 11, 2008;
  2. Affirmation of Ricardo J. Mauro dated August 11, 2008 with exhibits;
  3. Affidavit of Edith Melloh sworn to August 21, 2008;
  4. Affirmation of Michael C. Rizzo sworn to September 23, 2008.