New York State Court of Claims

New York State Court of Claims

BOOKLESS v. STATE OF NEW YORK, #2008-030-571, , Motion No. M-75497


Late claim motion granted. Proposed claim arises out of an accident occurring in pre-dawn hours, involving a police vehicle and police control of the situs of an earlier highway accident. Since only the minimal burden of establishing the appearance of merit need be shown, in the absence of prejudice, and given issues of fact as to whether conduct of police was reckless versus merely negligent, at this phase the applicability of the qualified exemption for police vehicles involved in an emergency operation under Vehicle and Traffic Law §1104 should not have the preclusive effect of preventing late filing of a claim. No expert affidavit is required

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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
October 27, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for late claim relief pursuant to Court of Claims Act § 10 (6):

1,2 Notice of Motion; Attorney Affirmation by Richard S. Vecchio, attorney for claimant and attached exhibits

  1. Affirmation in Opposition to Motion for Leave to File a Late Claim by Vincent M. Cascio, Assistant Attorney General
  1. Reply Affirmation by Richard S. Vecchio attorney for claimant
John C. Bookless alleges in his proposed claim that on November 15, 2007 he was injured when the car he was driving on the northbound side of I-684 collided with a disabled truck that had been involved in an earlier accident on northbound I-684 in the Town of North Salem, County of Westchester, State of New York. He alleges that the State of New York, through its agent State Trooper Scott Kuntz, caused such collision because Trooper Kuntz failed to adequately control the situs of the earlier accident, and parked his vehicle on the southbound side with the headlights on causing a distraction for northbound traffic, and failed to alert oncoming northbound traffic to the presence of an overturned truck across northbound lanes of I-684 by the use of flashers or other warning signs. In the police accident reports supporting this submission, as well as claimant’s affidavit, it appears that this accident occurred in the pre-dawn hours of November 15, 2007. [See Attorney Affirmation by Richard S. Vecchio, Exhibit B (Affidavit by John C. Bookless, ¶¶4 and 8); Exhibit D (Police Accident Reports)].

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time 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 . . .” Court of Claims Act § 10(6). Here, the applicable statute of limitations is three (3) years, thus the motion is timely premised on an asserted date of accrual of November 15, 2007. Civil Practice Law and Rules §214.

A copy of the proposed claim[1] must accompany the motion, allowing the court to ascertain the particulars of the claim, including the date of accrual, specific location of the alleged accident, and what permanent injuries are alleged. See Court of Claims Act §11(b); 22 NYCRR §206.6.

A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates 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 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. A general allegation of negligence, and a failure to adequately set forth sufficient facts to show the merit of the claim, will not suffice. Olsen v State of New York, 45 AD3d 824 (2d Dept 2007); Anderson v City University of New York at Queens Coll., 8 AD3d 413, 414 (2d Dept 2004).

As noted, this claim arises out of an accident occurring at approximately 4:30 a.m. on November 15, 2007. It is undisputed that an accident occurred. Claimant’s removal from the scene of the accident, subsequent hospitalizations, and asserted memory loss, constitute a reasonable excuse in the nature of a disability, but only for a portion of the time after the date of accrual of this claim. See Wolf v State of New York, 140 AD2d 692, 693 (2d Dept 1988); Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). Claimant indicates that he was initially hospitalized for one month, thereafter transferred for rehabilitative purposes to Bethel Health and Rehab Center on December 18, 2007, and discharged home on March 19, 2008 to undergo further physical therapy for three (3) weeks. [Attorney Affirmation by Richard S. Vecchio, Exhibit B, Affidavit by John C. Bookless, ¶6]. In the interim, claimant was apparently able to discuss the accident with his attorney, and some investigation on counsel’s part followed. [Ibid. ¶¶ 8, 10]. It would have been helpful if claimant were to have supplied a physician’s affidavit with respect to any asserted medical or other impairment, that might further support his contention that he has a reasonable excuse in addition to his own sworn statements. See Wolf v State of New York, supra;[2] cf. Cabral v State of New York, 149 AD2d 453 (2d Dept 1989)[3]; Goldstein v State of New York, 75 AD2d 613, 614 (2d Dept 1980)[4]. An excuse, however, is but one of the factors to be considered, and its presence or absence does not conclude whether late claim relief is afforded. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

Claimant has a partial alternate remedy in the form of a lawsuit against the driver of the truck, presumably, but asserts that the State shares responsibility based upon the trooper’s conduct, thus this factor is somewhat neutral.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant’s motion. There are ample records of the accident, including police accident reports of both the first accident leading to the overturned truck, and claimant’s own accident. [See Attorney Affirmation by Richard S. Vecchio, Exhibit D]. The passage of time has not been so great that the State’s ability to investigate is impeded to its prejudice. Cf. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual). Accordingly, these factors weigh in favor of granting the motion.

As noted, claimant need not establish a prima facie case but the appearance of merit. If the allegations in the claim are accepted as true for the purposes of the motion, claimant has made the requisite showing of merit in order to permit late filing of his claim.

The court agrees that it is likely that the standard of care to be applied in this case will be “recklessness” because a police vehicle is an authorized “emergency vehicle” [see Vehicle and Traffic Law §101; Wilmot v City of New York, 73 AD2d 201 (1st Dept 1980)] allowed a qualified exemption from the application of rules of the road when engaged in an “emergency operation” [see Vehicle and Traffic Law §§ 114-b; 1104[5]]. The purpose of this qualified exemption is to give drivers of emergency vehicles the freedom to perform their duties unhampered by normal rules of the road. Saarinen v Kerr, 84 NY2d 494 (1994). Recklessness

“. . . requires evidence that ‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome . . . (citation omitted).” Saarinen v Kerr, supra at 501 (1994). It is noted that most of the time the statute has been utilized to exempt police conduct in high speed chases, not the inherently more deliberative actions that may be required for securing the scene of an accident. [See id.; cf. Campbell v City of Elmira, 84 NY2d 505 (1994)[6] and Szczerbiak v Pilat, 90 NY2d 553, 557 (1997)[7]]. The nature of the emergency operation, and the degree of the conduct established is, however, examined, in any event, even when a lawsuit is ultimately dismissed on summary judgment. See e.g Puntarich v County of Suffolk, 47 AD3d 785, 786 (2d Dept 2008);[8] Gonyea v County of Saratoga, 23 AD3d 790, 792 (3d Dept 2005);[9] but cf. Badalamenti v City of New York, 30 AD3d 452, 453 (2d Dept 2006);1[0] Hudson v Boutin, 239 AD2d 624, 625 (3d Dept 1997).1[1]

At this phase the applicability of the statute should not have the preclusive effect of preventing late filing of a claim since only the minimal burden of establishing the appearance of merit need be shown. [See Allstate v State of New York, UID # 2007-018-562, Claim No. None, Motion No. M-72490 (Fitzpatrick, J., March 15, 2007);1[2] Henderson v State of New York, UID # 2004-018-282, Claim No. NONE, Motion No. M-67436 (Fitzpatrick, J., March 16, 2004);1[3] Alvarado v State of New York, UID # 2003-019-534, Claim No. NONE, Motion No. M-66344 (Lebous, J., March 31, 2003).1[4]

Defendant argues that claimant was required to submit an affidavit from an expert to establish the appearance of merit to his claim, supported as it is “only” by “Claimant’s own self-serving and conclusory statements.” [Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney General, ¶19]. First, claimant has also attached police accident reports raising issues of fact as to the kind and degree of the warnings provided to drivers in the pre-dawn light concerning the presence of a truck across two lanes of travel on a high-speed, three-lane highway, in addition to his own, albeit limited, recollection of the accident. As noted by claimant’s counsel, it is alleged that the accident scene was not illuminated in any way, and the trooper’s vehicle was on the southbound side - rather than the northbound side where the truck was - arguably making its flashing lights more significant for southbound drivers, not those traveling north. [Reply Affirmation, ¶10]. Second, the Court is not convinced that an expert’s testimony will be required to establish the cause of action presented here in the same manner that expert testimony would be required to establish a cause of action for medical malpractice for example, or one for negligent highway design. See e.g. Matter of Perez v State of New York, 293 AD2d 918 (3d Dept 2002)1[5]; Klingler v State of New York, 213 AD2d 378 (2d Dept 1995).1[6]

Accordingly, and after careful consideration of all the appropriate factors [Court of Claims Act §10(6)], the court hereby exercises its discretion to find that claimant’s motion for permission to serve and file a late claim is hereby granted. Claimant is directed to serve a claim similar to the one proposed alleging causes of action under the appropriate standard of care upon the Attorney General, naming the State of New York as the only proper defendant, and to file same with proof of service with the Chief Clerk of the Court of Claims, all within thirty (30) days from the date of filing of this decision and order, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to §§ 10, and 11-a and the Uniform Rules for the Court of Claims regarding the contents of a claim. See 22 NYCRR §206.6.

October 27, 2008
White Plains, New York

Judge of the Court of Claims

[1]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . . ”
[2]. Fact of prolonged hospitalization due to automobile accident, and its documentation, provided reasonable excuse for delay in filing.
[3]. “The only excuse offered in support of the contention that the delay was excusable was a conclusory assertion by the claimant’s counsel, unsupported by a physician’s affidavit, that the claimant’s alleged hospitalization at some undisclosed time delayed her from contacting an attorney, and that the claimant had no knowledge of the 90-day statutory filing requirement.”
[4]. “Although claimant alleged she was either hospitalized or convalescing for the entire period during which she could have timely filed the claim, such alleged incapacity is inadequate as an excuse for late filing without either a physician’s affidavit or hospital records . . . (citation omitted).”

[5]. Vehicle and Traffic Law § 1104, concerning “authorized emergency vehicles,” provides: “(a) The driver of an authorized emergency vehicle, when involved in an emergency operation, may exercise the privileges set forth in this section, but subject to the conditions herein stated. (b) The driver of an authorized emergency vehicle may:
1. Stop, stand or park irrespective of the provisions of this title;
2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;
3. Exceed the maximum speed limits so long as he does not endanger life or property;
4. Disregard regulations governing directions of movement or turning in specified directions.”
[6]. The Court of Appeals held that evidence supported jury's finding that fire truck driver acted with reckless disregard for safety of others when he drove fire engine through red light at approximately 10 to 15 miles per hour and plaintiff motorcyclist struck fire truck, violating requirement that drivers of emergency vehicles drive with due regard for safety of all persons. See Vehicle and Traffic Law § 1104(e).
[7]. “. . . Trial Judge was correct in not permitting the issue of liability to go before the jury. It can by no means be said that the risk which Officer Pilat took in accelerating down Dick Road was unreasonable, especially in light of his duty to respond to the report of five males engaged in a melee, or that he had created a great risk of probable harm by driving 800 feet before attempting to engage his emergency lights and siren. When Officer Pilat did glance down from the road to activate his emergency lights, there was no pedestrian traffic in sight and he was several blocks from the next intersection . . . (citation omitted). At any rate, even if Officer Pilat were negligent in glancing down, this ‘momentary judgment lapse’ does not alone rise to the level of recklessness required of the driver of an emergency vehicle in order for liability to attach . . . (citation omitted).”
[8]. Defendant met burden for dismissal on summary judgment, and “established their prima facie entitlement to judgment as a matter of law by demonstrating that the police officer operating the vehicle which struck the plaintiff was engaged in an emergency operation at the time of the collision (see Vehicle and Traffic Law §114-b), and that the officer’s conduct did not rise to the level of reckless disregard for the safety of others . . .(citations omitted).” From the appellate briefs the factual scenario appears to have been that the officer was responding to a call reporting a theft from a local diner and was in pursuit of two suspects with his emergency lights and his siren engaged when he pulled out of a parking lot behind another police car that also had its emergency lights and siren on, in front of the plaintiff’s car. They collided. While the trial court had denied defendant’s motion for summary judgment dismissing the claim, when the appellate division reversed it found that plaintiffs had not rebutted the prima facie showing made by defendants.
[9]. Defendant met initial burden for dismissal on summary judgment, and plaintiff failed to rebut defendant’s showing, where “[t]he evidence in the record reveals that the road was flat and straight for at least a quarter of a mile in each direction from the accident site. Plaintiff acknowledged at his deposition that it was light out and not raining. Rodriguez testified that the police car was positioned consistent with Sheriff Department policies, which provided that, when involved in a traffic stop on the highway, a police vehicle should be positioned ‘two feet outside and to the left of the violator's vehicle [in order to] provide[ ] the maximum safety to the violator, the officer, and all other traffic.’ Both plaintiff and Finn testified that they could see the flashing lights of the police car approximately half a mile before reaching the site from their respective opposite directions. They both reportedly slowed as they approached the scene. Upon review of this record, we agree with Supreme Court that defendants sustained their initial burden for dismissal and plaintiff failed to counter with evidence raising a triable issue under the reckless disregard standard.”
1[0]. “[P]arties’ evidentiary submissions indicate that the defendant police officer did not stop at the stop sign which controlled the intersection where the accident occurred, that his view of the intersection was partially obstructed by a parked truck, and that he accelerated his speed upon entering the intersection . . . there are disputed issues of fact as to whether the defendant police officer activated the turret lights and siren on his vehicle before proceeding into the intersection. Under these circumstances, the defendants are not entitled to judgment as a matter of law on the issue of whether the defendant police officer was operating his vehicle in reckless disregard for others at the time of the accident.”
[1]1. “In light of the absence of flares and the fact that Hudson intentionally parked his vehicle in the driving lane of an interstate highway on a night where the weather conditions included freezing rain mixed with snow, we find that the issue of whether Hudson’s conduct rose to the level of recklessness is a matter for the jury to determine. Accordingly, Supreme Court did not err in denying summary judgment to Hudson's estate.”

1[2]. “...[Claimant] maintains that she stopped at the light at the intersection with East Adams Street, waited for the other emergency vehicles to pass, looked to her right including onto Monroe Road before proceeding with her righthand turn. Officer Learned indicates that he activated his lights and siren and slowed down approximately 40 feet before the intersection. He states that ‘[t]he traffic in the area of the intersection appeared that it was slowing or stopped as they saw all of the other police vehicles with their lights and sirens on.’... He goes on to state that ‘[i]t appeared that no traffic was going to be driving in front of my vehicle and that the light for the I-81 off ramp was red. I then took my foot off of the brake as I was closer to the intersection.’... Syracuse City Police Officer David Gilbertsen, who investigated the accident, indicates that although Officer Learned slowed prior to the intersection, he resumed his speed as he went through the intersection. There is no indication at what speed he proceeded through the intersection.
Although the proof may only show ultimately that Officer Learned failed to act prudently in proceeding through the intersection, there are sufficient factual allegations at this juncture to find, based upon the minimal standard that the allegations contained in the proposed claim and supporting documents, Movant may potentially have a valid cause of action.”
1[3]. Proposed claim alleged that State Trooper’s conduct was negligent in failing to “take any action (using flares, etc.) to alert oncoming motorists of the icy spot on the roadway. Movant’s vehicle went off the roadway at the same location as the earlier vehicle.”

1[4]. The claim arises from a “three-car accident that occurred on June 19, 2002 involving a vehicle being operated by a State Trooper, Brendan M. Dillon, and two civilian vehicles, one of which was owned and operated by Claimant herein. . . . Trooper Dillon was on duty operating a marked State Troop vehicle when he received a radio message to assist another Trooper on a ‘violent domestic call’ at a location approximately 15 miles from his location at the time . . . Trooper Dillon entered State Route 17B, which is mostly a two-lane roadway, traveling westbound.

Trooper Dillon observed a line of traffic in front of him and engaged his overhead emergency red lights and siren . . .
[T]his Court cannot definitely conclude that Trooper Dillon's conduct amounted only to negligence and not reckless disregard, particularly in relation to the concessions by the Trooper that his vehicle was attempting to overtake a vehicle while straddling a double yellow line on a two-lane roadway as he crested a hill with limited sight distance while approaching an intersection. Based on this record, this Court finds that Claimant has established the proposed claim appears meritorious within the meaning of CCA 10 (6), especially in view of the minimal burden applicable on late filing motions.”
1[5]. Inmate’s failure to establish merits of medical malpractice claim through expert medical evidence warranted denial of late claim motion where he claimed mis-diagnosis and ineffectual treatment of cancer exacerbated his condition. A layperson alone could not say whether treatment deviated from accepted standards of care.
1[6]. “The claimant’s unsupported opinion that her motor vehicle accident might not have happened had the State installed a traffic light at the intersection where it occurred does not suffice to establish that her claim has merit . . .” Klingler v State of New York, supra at 379.