New York State Court of Claims

New York State Court of Claims

GRAY v. THE STATE OF NEW YORK, #2008-044-594, Claim No. None, Motion No. M-74588


Court granted motion for permission to late file for injuries received when automobile passengers were engulfed in a mudslide.

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:
BOTTAR LEONE, PLLCBY: Michael A. Bottar, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 3, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for permission to file and serve a late claim to recover for personal injuries allegedly caused by the negligence of defendant State of New York (defendant) in its design, construction and maintenance of Interstate Highway 88 (I-88). Defendant opposes the motion. The Court granted several adjournments and accepted additional submissions, including reply and sur-reply papers from both parties.

A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act

§ 10 [6]). Claimants assert that they were injured on November 16, 2006 when they were passengers in a vehicle (Jeep) that was engulfed in a mudslide (landslide) which caused the Jeep to flip over the highway median, and land on its roof. The applicable statute of limitations for a negligence cause of action is three years from the date of accrual (see CPLR 214 [5]). Accordingly, this motion, served on February 25, 2008 is timely.

Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act

§ 10 (6) in determining a motion to permit a late filing of a claim are whether:

1) the delay in filing the claim was excusable;

2) defendant had notice of the essential facts constituting the claim;

3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;

5) the failure to file or serve upon the attorney general a timely claim or to

serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and

6) claimant has any other available remedy.

Claimants assert that the delay in filing a claim was justified because they were not aware of the 90-day time limitation for filing a claim against the State. Claimants’ ignorance of the requirements of the Court of Claims Act is not an adequate excuse for their delay in timely serving a notice of intention to file a claim, or in timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]). Accordingly, this factor weighs against claimants.

The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. It is undisputed that members of the State Police witnessed and investigated several accidents along I-88 as a result of the landslide, including that of claimants. Moreover, the Department of Transportation (DOT) responded to the site, and closed a large portion of eastbound I-88. Although defendant may not have investigated the accidents in relation to a civil lawsuit, defendant appropriately concedes that the factors involving notice and the opportunity to investigate are not in issue. Moreover, defendant does not assert that there will be substantial prejudice to the State in defending this claim. Thus, the three factors of notice of the essential facts, an opportunity to investigate and the lack of prejudice all weigh in favor of claimants.

Another factor to be considered is whether claimants have any other available remedy. Defendant argues that claimants may have causes of action against both Canadian Pacific Railroad, which owns railroad tracks approximately one half the way up the adjacent embankment, and against owners of the properties located at the top of the embankment. Claimants have completely failed to address this factor, and it thus weighs against them.

The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth.,

92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York,

154 Misc 2d 199, 202-203 [1992]).

“It is well settled that in order to set forth a prima facie case of negligence, the [claimants] must demonstrate: (1) a duty owed by the defendant to the [claimants]; (2) a breach of that duty; and (3) an injury suffered by the [claimants] which was proximately caused by the breach” (Murray v New York City Hous. Auth., 269 AD2d 288, 289 [2000]).

Claimants allege that they had stopped their vehicle in an eastbound lane of I-88 in order to avoid a landslide which had “poured off of a steep embankment” and covered both eastbound lanes of the highway. Claimants abandoned their vehicle and went to sit in another vehicle (the Jeep) which was also stopped. Unfortunately, a second landslide engulfed the Jeep, and pushed it across both eastbound lanes, flipping it over the median. The Jeep apparently landed on its roof in the southernmost westbound lane of I-88, and claimants both allegedly suffered serious injuries.

Defendant initially contended that claimants’ failure to provide an expert affidavit establishing both the manner in which the State was allegedly negligent, and that the negligence was causally related to claimants’ damages, was fatal to this motion. However, with defendant’s consent, the motion was adjourned, and claimants submitted the affidavit of Joseph J. McHugh, a professional engineer. The embankment in the vicinity of the incident consists of rocks, boulders, shale, plants, trees and exposed roots, and according to McHugh, the slope is vertical to nearly vertical. McHugh explains that landslides occur when the forces acting on slope materials are altered, causing them to lose cohesion with underlying or surrounding materials. It is McHugh’s opinion that the surrounding material eroded due to rainy weather. Repairs have been made at the site, including installation of protective measures such as fabric stretched around and secured to the slope, construction of a retaining wall approximately 75 feet long, and a chain link fence stretched across the hillside. McHugh opines that although the DOT was familiar with these types of protective measures, they were not in place prior to the landslides. McHugh further opines that the landslides were a direct result of the State’s failure to: properly design, inspect and maintain the hillside; design and implement protective devices; properly drain the sites; identify and protect against roadside hazards; and design and implement policies to ensure the integrity of the hillside.

In opposition, defendant provides the affidavit of Frank Matyas, a Regional Construction Safety Coordinator and a Regional Construction Rail Coordinator, for DOT. Matyas denies that DOT conducted the repair work, and states that it was performed entirely by Canadian Pacific Railroad. Matyas further indicates that DOT’s only involvement with the repairs was to close one eastbound lane of I-88 during the work. However, Matyas does not address the issues raised by claimants of defendant’s apparent responsibility for or alleged negligence in the design, inspection, or maintenance of the area.

Claimants have alleged that the landslide originated on an embankment immediately adjacent to an Interstate highway owned and maintained by the State. They have also provided an expert opinion that the State may have been negligent in its design, inspection or maintenance of the embankment by, among other things, failing to provide protective measures on the embankment prior to the incident. Accordingly, the Court finds that the cause of action has at least the initial appearance of merit.

Four of the six statutory factors, including the crucial factor of merit, weigh in favor of claimants. Claimants’ motion for permission to file and serve a late claim is hereby granted. Claimants shall file a claim containing the information required by Court of Claims Act § 11 (b), and setting forth the aforementioned causes of action. Claimants shall file said claim and serve a copy of it upon the Attorney General within thirty (30) days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.

December 3, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimants’ motion:

1) Notice of Motion filed on February 28, 2008; Affidavit of Michael A. Bottar, Esq., sworn to on February 12, 2008, and attached Exhibits A through C; Affidavit of Fern E. Gray sworn to on January 30, 2008; Affidavit of James A. Gray sworn to on January 30, 2008; and proposed Claim.

2) Affirmation in Opposition of James E. Shoemaker, Assistant Attorney General (AAG), dated May 21, 2008.

3) Affidavit of Joseph J. McHugh, P.E., C.E.T, sworn to on June 20, 2008.

4) Supplemental Affirmation of James E. Shoemaker, AAG, dated August 20, 2008.

5) Supplemental Affirmation of Michael A. Bottar, Esq., dated August 25, 2008.