New York State Court of Claims

New York State Court of Claims

MURCHISON, JR. V. THE STATE OF NEW YORK, #2008-032-108, Claim No. N/A, Motion No. M-74450


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:
O'Connell and AronowitzBy: Donald W. Biggs, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
July 14, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves this Court for permission to file a late claim pursuant to Court of Claims Act § 10 (6).

In support of his request, claimant submits a proposed claim alleging that defendant State of New York’s negligence caused a vehicle accident that occurred on May 17, 2006 severely injuring him. At approximately 1:00 A.M. on that morning claimant and members of his family were in his vehicle attempting to back out onto State Route 374 in the Town of Saranac Lake, Clinton County after a search for the father of claimant’s girlfriend who is afflicted with Alzheimer’s Syndrome. Because of the difficulty of seeing if traffic was present upon the highway, claimant allegedly requested and received assistance from members of the of the New York State Police and/or New York State Department of Environmental Conservation who had been involved with the search. The proposed claim alleges that a member of the New York State Police and/or the Department of Environmental Conservation (DEC) negligently directed claimant to back out onto State Route 374 with his vehicle into the path of an oncoming car causing it to be struck by the car. As a result of the accident, claimant suffered significant injuries to his back, shoulders, lungs, ribs and brain. Claimant served a Notice of Intention upon the Attorney General on August 18, 2006, 93 days after the accident. Realizing that the Notice of Intention was untimely by three days under the Court of Claims Act (Court of Claims Act § 10 [3]), claimant filed the instant application for late claim relief on January 22, 2008.

To determine whether an application for permission to file a late claim should be granted, the claim must be timely under the applicable Statute of Limitations and consideration must be given to certain statutory factors. These factors are whether: (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious (Court of Claims Act § 10 [6]). The presence or absence of any one factor is not determinative (see Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979 [1982]). Rather, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim (see id.).

Initially, inasmuch as this negligence claim accrued on May 17, 2006, the date of the accident (see Konigsberg v State of New York, 256 AD2d 982, 982-983 [3d Dept 1998]; Marine Midland Bank v State of New York, 195 AD2d 871, 873 [3d Dept 1993], lv denied 82 NY2d 661 [1993]), the late claim application is timely as the three-year Statute of Limitations set forth in CPLR §214 has not expired.

Next, claimant’s excuse for the delay in filing the claim or Notice of Intention appears to rest primarily on confusion within the office between an associate attorney originally charged with serving the Notice of Intention who subsequently left the firm and the Attorney presently filing the application. Law office failure is not an adequate excuse for failing to comply with the filing requirements of Court of Claims Act § 10 (see Nyberg v State of New York, 154 Misc 2d 199, 200 [1992]; see also Osho v State of New York, Claim No. None, Motion No. M-67743, UID #2004-028-509, Sise, J). Consequently, this factor weighs against claimant.

The Court considers the intertwined factors of notice to defendant, its opportunity to investigate and potential prejudice together (see Brewer v State of New York, 176 Misc 2d 337 [1998]). Claimant contends that no prejudice has enured to defendant if claimant is given permission to file a late claim because both the State Police and/or the DEC were on the scene and witnessed the accident and because the Notice of Intention was a mere three days past the statutory 90-day time period. Based on this, and the fact that defendant does not contend otherwise in its opposition papers, the Court determines that these factors weigh in claimant’s favor.

With respect to the factor of alternative remedies, defendant argues, and the Court accepts, that claimant has an alternative remedy against the driver of the vehicle that struck claimant’s vehicle. The Court also accepts, however, claimant’s explanation that the adequacy of said remedy may be less than optimal since, as claimant explains, the insurance policy of the driver was for only $50,000. Based on the description of the injuries sustained by claimant and his concomitant hospitalizations (Affidavit of Donald W Biggs, ¶¶ 34-36) this alternative remedy may be just a partial remedy. Consequently, the Court finds that this factor weighs in neither parties’ favor (see Epstein v State of New York, 88 AD2d 967 [2d Dept 1982]; Rosenhack v State of New York, 112 Misc 2d 967 [1982]).

Finally, regarding the proposed claim’s potential merit, defendant argues that claimant has offered no evidentiary support for his allegation that a State employee of either the DEC or the State Police directed claimant to back out onto the highway and mentions that claimant was ticketed for unsafe backing in connection with the accident. Claimant counters that this traffic violation was dismissed and includes as an exhibit the Saranac Town Court Certificate of Disposition form evidencing such dismissal.

Generally, in order for the Court to find a proposed claim has merit for purposes of granting late claim relief, a claimant must establish the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [1977]). This does not rise to the level of claimant having to establish a prima facie case at this point, but rather the “appearance of merit,” a standard which has been described as a “low threshold” (Bernard v State of New York, Motion No. M-61948, UID #2000-007-043, Bell, J). Here, viewing claimant’s moving papers as a whole and acknowledging that the absence of objective evidentiary support of the alleged involvement of either the State Police or DEC in directing claimant to back onto the highway is hardly surprising at this juncture, the Court finds that claimant has made a sufficient showing of merit for purposes of this application.

Therefore, after balancing the requisite factors, the Court determines that leave to file a late claim should be granted. Claimant's motion M-74450 is granted. Claimant is directed to file and serve his claim within 45 days from the date of filing this Decision and Order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims.

July 14, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed January 22, 2008;

2. Affidavit of Donald W. Biggs, sworn to January 17, 2008 with annexed Exhibits A-B;

3. Affidavit in Opposition of Michael C. Rizzo, Esq. AAG, Sworn to January 29, 2008 with annexed Exhibit A;

4. Reply Affidavit of Donald W. Biggs, Esq., sworn to February 5, 2008 with annexed Exhibit A.