New York State Court of Claims

New York State Court of Claims

v. THE STATE OF NEW YORK, AIR PEGASUS HELIPORT, INC., and LIBERTY HELICOPTERS, INC., #2008-016-067, Claim No. None, Motion No. M-75387


Synopsis


Late claim motion was denied.

Case Information

UID:
2008-016-067
Claimant(s):
MICHAEL STRASMICH
Claimant short name:

Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, AIR PEGASUS HELIPORT, INC., and LIBERTY HELICOPTERS, INC.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-75387
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
David B. Rankin, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
December 8, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Michael Strasmich moves for permission to file a late claim pursuant to §10.6 of the Act (the “Act”). In his proposed claim, Mr. Strasmich alleges that on March 27, 2007, while riding his bicycle on the Hudson River bicycle path near the Air Pegasus Heliport at 12th Avenue and West 30th Street in Manhattan, he was propelled from his bicycle by a wind blast from a helicopter. 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.[1]

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). There is no indication that prior to the making of this motion, the State had any knowledge of the incident involving claimant. Moreover, as set forth more fully below, the only negligence alleged as to the State is the removal of a “partial wooden fence” between the bicycle path and the heliport - - which allegedly occurred twelve years ago. In view of the foregoing, I find that these three factors have not been met.

As to an alternate remedy, claimant has sued Liberty Helicopters, Inc. (“Liberty”) and Pegasus Heliport, Inc. “(“Pegasus”) in Supreme Court, New York County. With regard to excuse, claimant maintains that he did not know of any potential liability on the part of the State until he received an affidavit by the vice president of Pegasus referring to the removal of the fence in 1996. He has advanced no authority to suggest that this is a valid excuse for the purposes of the Act.

Finally, it must be determined whether the proposed claim appears meritorious. As to the incident itself, claimant has failed to provide his own affidavit, an incident report or any other relevant documentation; all that has been submitted is his attorney’s affirmation. Moreover, the alleged role of the State to this incident is limited as follows. Strasmich alleges that the bicycle path was maintained by the City of New York, that the helicopter was operated by Liberty, and that the heliport was operated by Pegasus.[2] The sole allegation as to the State is a contention that in 1996, the Department of Transportation performed construction “around” the area of the heliport, and during such work, removed a “partial wooden fence” that had been in place between the heliport and the bicycle path. No information as to such fence has been provided, such as its dimensions; nor has an engineer’s affidavit been submitted to suggest that such a barrier would have prevented claimant’s accident. I find that claimant fails to show the appearance of merit. See Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977).

Accordingly, having considered the six factors in view of the parties’ submissions[3], IT IS ORDERED that motion no. M-75387 be denied.

December 8, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]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).
  2. [2] It should be noted that the Court of Claims has no jurisdiction over any of such entities, the latter two of which have been named as defendants in the proposed claim.
  3. [3]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibits 1 through 4; and defendant’s affirmation in opposition with exhibit A.