New York State Court of Claims

New York State Court of Claims

PRECIADO v. THE STATE OF NEW YORK, #2008-029-022, Claim No. None, Motion No. M-74565


Synopsis


Claimant’s motion for permission to file a late claim is denied without prejudice, where claimant’s papers did not contain sufficient information to indicate that he sustained a serious injury, as required by the Insurance Law.

Case Information

UID:
2008-029-022
Claimant(s):
JOHN J. PRECIADO
1 1.It is neither necessary nor proper to name the New York State Office of Mental Retardation and Developmental Disabilities, a State agency without independent legal existence, in the caption.
Claimant short name:
PRECIADO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
It is neither necessary nor proper to name the New York State Office of Mental Retardation and Developmental Disabilities, a State agency without independent legal existence, in the caption.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-74565
Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
FINKELSTEIN & PARTNERSBy: Andrew L. Spitz, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Jeane Strickland Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 25, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant’s motion for permission to file a late claim, arising out of a July 31, 2007 automobile accident in which claimant’s vehicle was struck from behind by a State-owned vehicle driven by a State employee. Having failed to timely interpose a claim within the time constraints set forth in Court of Claims Act § 10(3), claimant seeks leave of the court pursuant to § 10(6).

The statute provides that the court has the discretion to permit the service and filing of a late claim, after consideration of all relevant factors including whether claimant’s delay is excusable, whether defendant had timely notice of and the opportunity to investigate the essential facts and circumstances underlying the claim, whether defendant would suffer substantial prejudice should the motion be granted, whether the proposed claim has the appearance of merit and whether claimant has an alternate remedy.

Claimant does not address the reason for his failure to serve and file a claim within 90 days of the accident, apparently conceding his delay was not excusable. Also undisputed is the essential factual allegation that the State driver struck claimant’s vehicle in the rear as claimant was turning into his driveway, as evidenced by the State Police Accident Report. Since “an employee of the State was not only present at the accident scene but was involved in the collision itself,” it is clear that defendant had timely notice of the essential allegations of the claim and the timely opportunity to investigate, and also clear that no prejudice, much less substantial prejudice, would accrue from the six-month delay between the expiration of the 90-day statutory period and the making of this motion (Wolf v State of New York, 140 AD2d 692, 693 [2d Dept 1988]).

Although not referenced by either party, claimant has an adequate and sufficient alternate remedy in the form of an action against the State driver in a court of competent jurisdiction (Morell v Balasubramanian, 70 NY2d 297 [1987]), an action not subject to the time limitations of the Court of Claims Act.

As to the apparent merit of the proposed claim, claimant’s burden is to show that the proposed claim is not patently groundless, frivolous or legally defective and that 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 [1977]). The undisputed allegation that defendant’s vehicle struck claimant’s vehicle in the rear is sufficient for the court to find apparent merit to the claim that the accident was caused by the negligence of defendant’s employee. However, claimant’s proposed cause of action is governed by Insurance Law § 5104(a), which requires that a claimant sustain a serious injury, as defined in § 5102(d), in order to recover damages for personal injuries. Thus, it was held as far back as 1983 that a putative claimant must address the question of serious injury in a late filing application:
“there is no way to determine from the papers before us whether the threshold requirements for a cause of action under the No-Fault Law have been met. Therefore, the claim cannot be said to have merit and it would be an abuse of discretion to grant the motion.”
Matter of Edwards v State of New York
(119 Misc 2d 355, 356 [1983]).

Although claimant argues that Edwards was wrongly decided and that the extent of the alleged injuries is irrelevant to § 10(6) analysis, the principle articulated in Edwards has been uniformly followed by the judges of this court:
“ . . . the unsupported and conclusory statements submitted on this motion are insufficient to even suggest that the No-Fault threshold has been met. An affidavit containing a showing of evidentiary facts by a physician competent to attest to the extent of the Movant’s injuries should generally accompany a motion to late file (Matter of Edwards v State of New York, 119 Misc 2d 355 [1983]). In other situations hospital records will suffice (see generally Goldstein v State of New York, 75 AD2d 613 [1980]). However, without proof that Movant sustained a serious injury as defined by the Insurance Law, this Court can not conclude that there is reasonable cause to believe that a meritorious cause of action exists, and it would be an abuse of this Court’s discretion to grant Movant’s motion for permission to late file and serve a claim (see Richards v State of New York, Ct Cl, March 27, 2006, Schweitzer, J., Claim No. None, Motion No. M-70768, UID # 2006-036-504; Bohl v State of New York, Ct Cl, October 14, 2005, Collins, J., Claim No. None, Motion No. M-70515, UID # 2005-015-045).”
Crawford v State of New York
(Ct Cl, Moriarty, J., UID No. 2007-037-027, June 18, 2007). [2]

The only proof before the court addressing the nature and extent of claimant’s injuries is claimant’s statement that “[a]s the result of this accident, I sustained severe personal injuries” (which is, of course, not proof) and bills indicating that claimant was charged $278.40 by Sharon Hospital for unspecified procedures, $264.00 by an orthopedist for an office visit and $450.00 for X-rays. Such is insufficient for the court to conclude that there is reasonable cause to believe that a valid cause of action exists.

Based on the foregoing, the court finds it would be an abuse of discretion to grant the current motion and it is denied. As the statute of limitations on claimant’s cause of action does not expire until July 2010, such denial is without prejudice to a further application made on proper and sufficient papers.





April 25, 2008
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims


Papers considered:

Notice of Motion, Affirmation, Affidavit and Exhibits

Affirmation in Opposition and Exhibits

Reply Affirmation and Exhibit


[2].Decisions of the Court of Claims may be found at the court’s web site, www.nyscourtofclaims.state.ny.us. The database, which contains decisions from 2001 to the present, contains numerous decisions in accord with Edwards.