New York State Court of Claims

New York State Court of Claims

CASSIDY v. THE STATE OF NEW YORK, #2008-016-038, Claim No. None, Motion No. M-74815


Late claim motion was granted.

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):

Alan C. Marin
Claimant’s attorney:
Wingate, Russotti & Shapiro, LLPBy: William P. Hepner, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 4, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Michael Cassidy for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In his proposed claim, Mr. Cassidy alleges that on October 12, 2006, he was operating his motor vehicle on the eastbound Jackie Robinson Parkway in Queens, approximately 50 feet west of Forest Park Drive, when the car went out of control and struck the parkway retaining wall. Claimant further alleges that the cause of the accident was flooding of the roadway because of “negligent design, configuration, implementation, planning, use, and/or maintenance . . . and/or failing to post warning . . .” See ¶7 of Cassidy’s proposed clam, annexed to his moving papers as exhibit G.

Claimant apparently timely served a notice of intention in this case on January 10, 2007 – but such incorrectly stated the location of the accident as 50 feet east of Myrtle Avenue, rather than 50 feet west of Forest Park Drive. See paragraph 7 of the March 19, 2008 affirmation of William P. Hepner (the “Hepner Aff.”).[1] The location in the notice of intention was based on the New York City Police Accident Report prepared in connection with the incident, which contained the incorrect 50 feet east of Myrtle Avenue location. According to counsel, this mistake was realized “[w]hen preparing for claimant’s statutory 50-h hearing [in his case against the City of New York] . . . [and] on June 26, 2007 . . . an Amended Police Accident Report was created, which specifies the correct location . . . claimant . . . served an Amended Notice of Intention to File a Claim, reflecting the correction location . . . on July 26, 2007.” See ¶¶8 and 9 of the Hepner Aff.

Previously, claimant made a motion for permission to amend the notice of intention to correct the accident location, but such motion (no. M-73972) was denied in a December 11, 2007 Decision and Order on the ground that the court does not the authority to permit the amendment of a notice of intention. The instant motion then followed. In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[2]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Defendant does not dispute that within 90 days of the accident, it was served with a notice of intention, albeit one with the incorrect accident location. Neither party specifies how far apart the two alleged locations are, although claimant states that the actual location is a “short distance” from that first alleged. In any event, approximately six months later, on July 26, 2007, defendant was served with an amended notice of intention with the correct location. Moreover, the condition alleged is not a transitory one, but rather an alleged recurring flooding caused by improper design. In view of the foregoing, I find that these three factors have been met.

As to an alternate remedy, claimant has also sued the City of New York. With regard to excuse, claimant blames the New York City police officer who entered the incorrect location on the accident report. But claimant – who was at the scene – does not explain why he did not catch this error in the notice of intention, and he has provided no authority to suggest that he has an excuse recognized for the purposes of the late claim provisions of the Act.

Finally, it must be determined whether the proposed claim appears meritorious. Claimant has submitted the affidavit of licensed professional engineer Nicholas Bellizzi. Mr. Bellizzi states in relevant part that:
. . . I reviewed the facts of the above-referenced matter. I have met with the claimant and have visited the scene of his accident. I have reviewed claimant’s Proposed Claim. My findings and conclusions, to a reasonable degree of accident reconstruction, roadway configuration/design and engineering certainty, are as follows:

It is my opinion that claimant has a meritorious claim, however, I am not able to make specific findings with respect to the roadway and drainage system without a closer inspection, which would require the road to be closed for a period of time by the City of New York, due to safety issues.

Claimant’s counsel is currently working on obtaining an order of the Supreme court, Queens County to get this inspection. From my experience, the Jackie Robinson Parkway is a road that floods often when it rains. This type of occurrence is typically linked to improper drainage design and implementation, which would have to do with the design and construction of the roadway.

See exhibit B to claimant’s reply affirmation. While limited as stated, overall, I find that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim “must not be patently groundless, frivolous, or legally defective” and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, “there is reasonable cause to believe that a valid cause of action exists.”

Accordingly, having reviewed the parties’ submissions[3], IT IS ORDERED that motion no. M-74815 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file the proposed claim submitted with this motion in compliance with §§11 and 11-a of the Court of Claims Act.

August 4, 2008
New York, New York

Judge of the Court of Claims

  1. [1]Mr. Hepner purports to annex to his affirmation as exhibit C a copy of the notice of intention served on the State, however exhibit C is in fact a copy of a claim served on the City of New York.
  2. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  3. [3]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibits A through G; defendant’s affirmation in opposition; and claimant’s reply affirmation with exhibits A through C.