New York State Court of Claims

New York State Court of Claims

OCTOBER v. THE STATE OF NEW YORK, #2008-029-040, Claim No. 114327, Motion No. M-74987


Late filing motion seeking to file claim against Thruway Authority granted. Court notes claim was timely served on State, which has same counsel as Thruway Authority (Attorney General) and claim of prejudice was thus frivolous.

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):

Claimant’s attorney:
ROSENBAUM & ROSENBAUM, P.C.By: Matthew T. Gammons, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Rachel Zaffrann, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 22, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimants’ motion for permission to file a late claim against the New York State Thruway Authority. According to the filed claim, which names only the State of New York as defendant, Edward October, driver, and Donna October and Andrea October, passengers, were injured in a December 19, 2005 one-vehicle accident on northbound I-87 at or near milepost 6.8 in the Town of Greenburgh, Westchester County, allegedly caused by negligent maintenance of the road resulting in an accumulation of ice. The claim alleges that a notice of intention to file a claim was served on the Attorney General on March 15, 2006 and the instant claim was filed October 9, 2007. The claim (erroneously denominated a “verified complaint”) suffers from a number of infirmities, one of which is the subject of this motion.

The first anomaly, which seems to have escaped the attention of counsel since it is not mentioned at all in the motion papers, is that although the body of the claim refers to injuries sustained by Edward October and requests judgment on his behalf, the caption lists only two claimants, Mr. October not being among them. Nevertheless, since the filed claim will be dismissed for reasons to be discussed infra, such defect will become moot.

The New York State Thruway Authority Act (Public Authorities Law §§ 350 et seq.), creating the Thruway Authority, was enacted in 1950 for the purpose of creating and operating the thruway system. Where it passes through Westchester County, from the New York City line to the Tappan Zee Bridge, the thruway is also known as Interstate Route 87, a fact known to anyone driving on the road. It was settled long ago that the Thruway Authority is an autonomous public corporation, with legal existence separate and apart from the State of New York (Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420 [1959]), and that, although exclusive jurisdiction to hear tort claims against the authority lies in the Court of Claims, service of process on the Authority, as well as on the Attorney General, is necessary in order to obtain jurisdiction over the Authority (Bonaventure v New York State Thruway Auth., 108 AD2d 1002 [3d Dept 1985]; Cantor v State of New York, 43 AD2d 872 [3d Dept 1974]). This principle, first articulated in case law, was codified with the addition of section 11(a)(ii) to the Court of Claims Act in 1999.

It is thus undisputable that the subject accident occurred on the New York State Thruway, that the entity responsible for the construction, operation and maintenance of the thruway was neither named as a defendant in this claim nor served with the notice of intention or the claim, and that the sole defendant in the claim, the State of New York, has no responsibility for the maintenance of the thruway. Having belatedly come to the realization that they sued the wrong party, Donna October and Andrea October now request permission to file a late claim against the Thruway Authority pursuant to Court of Claims Act §10(6).

That statute grants the court the discretion to allow the filing of a late claim upon consideration of all relevant factors, including whether claimants’ delay was excusable, whether defendant had timely notice of and the opportunity to investigate the essential allegations, whether claimants have an alternate remedy and whether the proposed claim has the appearance of merit.

Although claimants have not presented a reasonable excuse for their failure to timely and properly institute a claim against the Authority, such is but one factor to consider and the absence of a reasonable excuse is not fatal to the application (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. et. ano., 55 NY2d 979 [1982]).

As to the timely notice, opportunity to investigate and lack of substantial prejudice factors, the court notes that although claimants failed to serve the Authority with either the notice of intention or the claim, they did serve the Attorney General, the Authority’s counsel, with the notice of intention within 90 days of the accident. Thus, there is absolutely no merit to the Authority’s disingenuous assertions that it did not have timely notice of the essential factual allegations of the claim, that it did not have the timely opportunity to investigate such allegations and that it would be substantially prejudiced should claimants’ application be granted.

Claimants’ notice of intention was received by the Attorney General within 90 days of the accident. It alleges that claimants’ vehicle was caused to skid off the roadway and into a wall as the result of its encounter with black ice and that such was the result of negligent maintenance of the roadway at or near milepost 6.8. The allegations of the notice of intention, and of the subsequent claim, were sufficiently detailed to comply with the requirements of Court of Claims Act §11(b). The only problem is that the named defendant was the State of New York instead of the Thruway Authority. However, just as it is no excuse for a claimant not to know that the thruway is operated by the Thruway Authority and not the State of New York, it is similarly not an excuse for its feigned claim of prejudice for the Authority to impliedly assert that because the accident location was stated as Interstate 87 in Westchester County, rather than the New York State Thruway in Westchester County, it was unable to conduct a timely investigation. The failure to name the Authority in the pleadings, and the failure to serve an additional copy on the Authority itself in addition to its counsel, were defects of form, with admittedly jurisdictional consequence, but not defects of substance. The court finds that the Authority had, through its counsel, timely notice of and the opportunity to investigate the essential allegations of the claim, and that it would suffer no prejudice, much less substantial prejudice, should the motion be granted.

As to the issue of the apparent merit of the claim, claimants need only show, at this point in the litigation, that the 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). The specific allegations that the Authority had actual notice of a recurrent icing problem in this area of the thruway are sufficient to meet that burden (
Jomarron v State of New York, 23 AD3d 527
Matter of Morales v State of New York, 292 AD2d 455; Marcus v State of New York, 172 AD2d 724

The court notes that, unlike the filed claim, the proposed claim does not contain any allegations pertaining to injuries sustained by Edward October. Although the caption of the proposed claim names two defendants – the State of New York and the Thruway Authority – the court’s finding of apparent merit relates only to the Authority. There is, as previously noted, no merit to any claim against the State of New York arising out of the alleged facts.

Accordingly, Claim No. 114327 against the State of New York is dismissed, sua sponte, as the papers before the court demonstrate indisputably, and the parties agree, that claimants sued the wrong party. Claimants motion for permission to file a late claim against the Thruway Authority is granted. Claimants shall serve and file the proposed claim, amended to remove references to the State of New York as a defendant, in accordance with all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, within 40 days after the filing date of this decision and order.

September 22, 2008
White Plains, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion with supporting papers

2. State’s Affirmation in Opposition with annexed Exhibits

3. Claimants’ Reply Affirmation