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
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’
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
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.