New York State Court of Claims

New York State Court of Claims



Case Information

In re the application of CAROL SEPE, as administratrix of the Estate of MICHAEL SEPE, deceased, for leave to file a late Claim
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:
By: Gwendolyn Hatcher, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 7, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for leave to file a late claim for wrongful death based on negligent construction, repair and/or maintenance of a section of highway, its guardrails and lighting. Defendant opposes.[1] On October 18, 2006, claimant’s husband died in a one-car accident on the Staten Island Expressway without regaining consciousness. The proposed claim alleges that negligent construction, repair and/or maintenance of a section of the highway, its guardrails and lighting were the cause of the accident. This motion was served on October 12, 2007, almost one year after the date of the accident. There is no indication when Mrs. Sepe was appointed administratrix of her husband’s estate, but it must have been more than 90 days prior to making this motion, otherwise the time limit to file a claim would not have lapsed. Court of Claims Act § 10 (2).

Claimant contends her proposed claim meets the primary statutory factors to be considered in determining whether to grant a motion for leave to file a late claim: the delay in filing the claim was excusable; the State had notice of the essential facts constituting the claim; the State had an opportunity to investigate the circumstances underlying the claim; the claim appears to be meritorious; the failure to file or serve a timely claim did not result in substantial prejudice to the State; and, she has no other available remedy. Court of Claims Act § 10 (6).

Claimant alleges she initially believed the accident site belonged to the City of New York, and thus filed a notice of claim with the City and appeared for a General Municipal Law § 50-h hearing. Documents she later received in response to her Freedom of Information Law (“FOIL”) requests informed her, she states, that the roadway in question was the responsibility of the State through its Department of Transportation or the Thruway Authority.[2] Although these documents also contained some essential facts pertaining to the claim, she asserts that other vital information, such as the Accident Investigation Squad’s investigation documents and photographs, and reports of previous accidents and guardrail repairs, has not yet been produced.

Claimant argues the extended time she needed to gather facts for her claim through FOIL requests, a process not yet complete, is an excusable reason for the delay in filing the claim and cites several cases to this effect. Absent, however, is any evidence that claimant encountered a substantial delay in receiving the information she sought. Attached to claimant’s reply papers is a letter from the State’s Department of Transportation (“DOT”), dated September 10, 2007, responding within three weeks to her August 20, 2007 FOIL request. The only palpable delay seems to be chargeable to claimant herself, who waited ten months after the accident before making the FOIL request. Claimant asserts she is still awaiting responses to other of her FOIL requests, but she has failed to provide details. Without tangible examples of delay by DOT or other agencies possibly involved, the court sees no parallel or equivalency here to the delays faced by other claimants who were stymied by forces outside of their control in the cases cited by claimant (see Santana v New York State Thruway Authority, 92 Misc 2d 1 [Ct Cl 1977]; Jaycox v State of New York, 35 Misc 2d 477 [Ct Cl 1962]; 47-Albany Troy Road Corp. v State of New York, 32 Misc 2d 255 [Ct Cl 1962]; Gielski v State of New York, 3 Misc 2d 578 [Ct Cl 1956]).

Claimant also contends the time needed to establish ownership or control of the accident site is a reasonable excuse for delay, citing Farrell v City of New York, 191 AD2d 698 (2d Dept 1993) (“Error concerning the identity of the governmental entity to be served can be excused provided that a prompt application for relief is made after discovery of the error”). The same reasoning applied in Weaver v State of New York, 112 AD2d 416, 418 [2d Dept 1985] where “claimant’s counsel proceeded diligently, albeit mistakenly, against the County of Westchester based on erroneous information supplied to him by personnel of the County of Westchester to the effect that the accident site was under the county’s jurisdiction,” there was reasonable excuse for delay. Other courts have taken the opposite view, however (Erca v State of New York, 51 AD2d 611 [3d Dept 1976]); and in at least one instance where a request for late filing was denied based on confusion over which governmental entity was the proper defendant, the court noted movant’s lack of diligence in pursuing the claim (Gross v State of New York, State of New York Department of Parks, Recreation & Preservation, Battery Park City Authority and Hudson River Park Trust, UID #2002-001-084, Motion No. M-65509, Read, P.J. [Oct. 7, 2002]). Here, dates and documentation of the steps claimant allegedly took in the wrong direction are missing, so the court is unable to assess her diligence.

Most importantly, claimant provides little support for the court to evaluate the apparent merit of her proposed claim. Her papers include her own signed affidavit of merit repeating some of her main arguments on this motion. On the underlying causal issue, she writes:

My attorneys have advised me that their investigation, while it has taken time, due to the usual delays encountered in obtaining government documentation, has yielded information that there may have been defects in the roadway that contributed to my husband’s accident. . . . My attorneys have informed me that the facts they have obtained point to defects in the roadway that, if borne out by further discovery, would form the basis for a meritorious claim for negligence against respondents. . .

Courts most often have held “late claim applications alleging negligence in highway design and construction must be supported by the sworn opinion of someone with related expertise.” Nyberg v State of New York, 154 Misc 2d 199, 203 [Ct Cl 1992]; Klingler v State of New York, 213 AD2d 378, 379 (2d Dept 1995) “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”; Knospe v State of New York, 9 Misc 3d 1126A [Ct Cl 2005] (“Despite Claimant’s belief that Defendant’s failure to properly construct and maintain the culvert led to the damages she sustained, 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”); Patton v State of New York, UID #2002-018-161, Claim No. 105365, Motion No. M-65102, Fitzpatrick, J. [August 26, 2002] (“in a motion for permission to file a late claim for negligent highway design or maintenance, the claim should ‘be supported by the sworn opinion of someone with related expertise’ [quoting Nyberg]”). While Morales v State of New York, 292 AD2d 455, 456 [2d Dept 2002] represents a contrary view, the trial court record before the Appellate Division, Second Department included support from “New York Code of Rules and Regulations, Part 131 [note omitted],” as well as, an American Association of State Highway and Transportation Officials Guide, a Federal Highway Administration Regulation and a 1967 New York State Department of Public Works document regarding placement of utility poles which were alleged violated by placement of the utility pole in question,” (Morales v State of New York, UID #2001-029-067, Motion No. M-63105, Mignano, J. [April 12, 2001]). Nothing in the claim here or in claimant’s affidavit of merit approaches this level of specificity about the highway, the guardrails or the lighting at the scene of the accident. Claimant instead resorts to speculative assurances from her attorneys that critical information of value to them may yet emerge. This is far from a reasonable showing of apparent merit.

Claimant’s position also is weak on the related statutory factors of notice to the State, its opportunity to investigate and resulting substantial prejudice. She attributes notice to the State to her unsubstantiated belief that the State is informed of all accidents on interstate highways, and from press coverage of the accident and also her belief that the guardrail involved in the accident was repaired shortly afterwards, presumably by someone associated with defendant. In support of this latter “repair” theory of notice, claimant offers three pages concerning a $9 million contract for “Rehabilitation of 18 Bridges on Staten Island Expressway” awarded June 5, 1997, nine years before the accident.[3] The State, in contrast, asserts that service of this motion on October 17, 2007 was its first notice of its possible liability here.

Insofar as the claim alleges negligent maintenance of the guardrails, lighting and the roadway (as distinguished from road construction or repair), the passage of one year since the accident may have substantially prejudiced defendant in its ability to investigate maintenance-related issues. Four succeeding seasons of changing weather conditions and the wear and tear of traffic on the busy highway may well have altered the physical condition of the accident scene as pertains to such issues.

The court denies the motion for leave to file a late claim. There is an insufficient showing of apparent merit for a highway construction claim, and movant’s arguments concerning other of the statutory factors under Court of Claims Act § 10 (6) are not sufficiently persuasive under these circumstances.

January 7, 2008
New York, New York

Judge of the Court of Claims

[1].The court considered the following papers on this motion: claimant’s notice of motion, together with affidavit of support dated October 11, 2007 and exhibits; defendant’s affirmation in opposition dated November 7, 2007; claimant’s reply affirmation dated November 16, 2007 and exhibits.
[2].The court takes judicial notice of Public Authorities Law § 356 which does not include the Staten Island Expressway within the scope and jurisdiction of the New York State Thruway Authority. Under the proposed claim, the State of New York thus would be the only proper party defendant before the Court of Claims.
[3].Defendant endeavors to dispute the repair theory by stating, without a supporting affidavit, that a DOT engineer believes it was the City that repaired the guardrail after the accident. Additionally, defendant asserts the accident location falls under a City-State maintenance agreement in accordance with Highway Law § 349-c (7), but offers no evidence of an extant agreement. If true, however, claimant’s initial decision to pursue a claim against the City may be the more appropriate one for an action based on a theory of negligent maintenance and repair of the roadway and/or its appurtenances.