New York State Court of Claims

New York State Court of Claims

NY CENTRAL MUTUAL FIRE INS. CO. a/s/o PIERCE v. THE STATE OF NEW YORK, #2008-031-069, , Motion No. M-75026


Synopsis


Claimant’s motion for permission to file a late claim is denied

Case Information

UID:
2008-031-069
Claimant(s):
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY as Subrogee of HAROLD W. PIERCE and MARY A. PIERCE
Claimant short name:
NY CENTRAL MUTUAL FIRE INS. CO. a/s/o PIERCE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-75026
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
KENNEY SHELTON LIPTAK NOWAK LLPBY: JESSE J. COOKE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 30, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 7, were read on motion by Claimant for permission to file a late claim pursuant to Court of Claims Act §10(6):
  1. Claimant’s Notice of Motion, filed May 28, 2008;
2) Affidavit of Jesse J. Cooke, Esq., sworn to May 27, 2008, with attached exhibits;
3) Affidavit of James D. Orr, sworn to May 19, 2008 with attached exhibits;
4) Claimant’s Memorandum of Law, dated May 27, 2008;
5) Affirmation of Reynolds E. Hahn, Esq., dated August 29, 2008;
6) Affidavit of David C. Goehring, sworn to August 29, 2008, with attached exhibits;
7) Reply Affirmation of Jesse J. Cooke, Esq. dated September 2, 2008. With this motion New York Central Mutual Fire Insurance Company (“Claimant”) requests permission to file a late claim to recover insurance benefits paid to its insureds, Harold W. and Mary A. Pierce. On August 15, 2007, Mr. and Mrs. Pierce were involved in a two-car accident at the intersection of State Route 78 and East Arcade Road in Java, New York. Claimant seeks to recover the benefits paid under its insurance policies alleging that the accident was the result of Defendant’s “negligence in failing to properly design, construct, maintain, and place appropriate traffic control devices at and around the subject intersection” (Claimant’s Memorandum of Law, p. 1).

Subdivision 6 of § 10 of the Court of Claims Act enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policeman’s & Fireman’s Retirement System, 55 NY2d 979). In its opposition to this motion, Defendant disputes only the merit of the proposed claim. The other factors, therefore, are presumed to weigh in Claimant’s favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024).

With regard to merit, unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). To meet this standard, Claimant has submitted the affidavit of James D. Orr, an accident reconstruction specialist. Claimant asserts that the affidavit of Mr. Orr demonstrates that the intersection in question was inherently dangerous and that Defendant’s negligence in constructing, signing and maintaining the intersection was the proximate cause of the accident.

In opposition to Claimant’s application, Defendant argues that Mr. Orr’s opinion should be given no weight because it is based upon faulty assumptions. Specifically, Defendant points out that the driver of the car that struck Claimant’s insureds, Ms. Kraft, testified that she was aware of both the intersection in question and the approach of the Pierce vehicle. She conceded that she saw the vehicle and misjudged its distance. Accordingly, Defendant argues that Mr. Orr’s opinion that the layout and signage of the intersection were defective is rendered immaterial because Ms. Kraft was, in fact, aware of the approach of the Pierce vehicle.

While I do not doubt the credentials of Mr. Orr as an accident reconstruction specialist, I note that he is neither an engineer nor a highway design expert. Although his opinion is that the intersection in question is inherently dangerous, he fails to adequately support this conclusion. Before a late claim such as the one proposed by Claimant can be permitted, some sort of expert proof is required to demonstrate that the State failed to comply with contemporary standards of highway design, maintenance, repair or upkeep (Nyberg v State of New York, supra; Klingler v State of New York, 213 AD2d 378). Nowhere in his affidavit did Mr. Orr identify how Defendant violated a standard, rule or regulation relating to the design, construction or signing of the intersection involved (see Pagano v New York State Thruway Auth., 235 AD2d 409 [claimants did not submit evidence that roadway was not designed or maintained in accordance with the applicable construction standards and thus failed to establish appearance of merit]).

Additionally, I find that, in light of Ms. Kraft’s testimony, Claimant has failed to offer anything of probative value indicating that Defendant’s alleged negligence was a proximate cause of Claimant’s insureds’ accident.

By contrast, the Affidavit of Defendant’s expert, Regional Traffic Engineer David C. Goehring, indicates that the intersection complied with the requirements of the Manual of Uniform Traffic Control Devices (“MUTCD”) and that there was no history of similar accidents at that location.

Additionally, if there was a hazard at the intersection other than one created by Defendant (i.e. a violation of the MUTCD), Claimant has failed to demonstrate that Defendant had notice of the allegedly defective condition. Without notice of the alleged defect, either actual or constructive, Defendant can not be cast in damages (Bethel v New York City Transit Auth., 92 NY2d 348; Babbie v Boisvert, 281 AD2d 845). Accordingly, I find that Claimant has failed to demonstrate that the proposed claim has merit.

Based upon the foregoing, it is hereby

ORDERED, that Claimant’s motion for permission to file a late claim in this matter is denied.

December 30, 2008
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims