New York State Court of Claims

New York State Court of Claims

HEPNER v. THE STATE OF NEW YORK, #2009-010-002, Claim No. NONE, Motion No. M-76005


Motion to file and serve a late claim is denied.

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):

Terry Jane Ruderman
Claimant’s attorney:
By: Kenneth J. Halperin, Esq.William Hepner, Esq.
Defendant’s attorney:
Attorney General for the State of New YorkBy: Rachel Zaffrann, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 13, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-5 were read and considered by the Court and oral argument was heard on movant’s application for leave to serve and file a late claim:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits........................1

Affirmation in Opposition.........................................................................................2

Reply Affirmation.....................................................................................................3

Affidavit of Thomas Mason......................................................................................4

Movant’s Exhibit 1 Received at Oral Argument......................................................5

The Proposed Claim (Movant’s Ex. D) arises out of an accident that occurred on June 3, 2008 when movant tripped and fell on the sidewalk in front of 251 Tarrytown Road, Town of Greenburgh. On August 4, 2008, a notice of claim was served upon the City of White Plains, Town of Greenburgh and the County of Westchester under the mistaken belief that they owned, operated and maintained the sidewalk (Movant’s Ex. C). On October 29, 2008, at the 50-h hearing, movant’s counsel was purportedly informed that the State is responsible for the brick part of the sidewalk and that the Town of Greenburgh is responsible for the concrete part of the sidewalk (Movant’s Attorney’s Affirmation, ¶9; Movant’s Ex. B). The motion papers do not identify the individual as one who has authority to speak on behalf of the State regarding the State’s scope of liability; nor do they set forth the person’s basis of knowledge. When given the opportunity at oral argument, movant failed to present anything which significantly added to his papers regarding the critical issue of the State's responsibility for the accident site. On November 6, 2008, more than 90 days after the claim’s accrual, movant served the State with a notice of intention to file a claim. Movant claims that the alleged defect is a difference in height of approximately two inches between the bricks and the concrete (Movant’s Ex. A, p 34, ¶9, Reply).

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the above six factors. Movant’s purported excuse that it was not apparent that the State was a proper party defendant is not acceptable (see Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854 [error in filing claim against wrong party was not excusable for delay]; Gatti v State of New York, 90 AD2d 840 [mistaken belief that town and not State owned the road was not reasonable excuse for delay]). Moreover, defendant submitted the unrefuted affidavit of Thomas Mason, Assistant Resident Engineer for the Westchester County Residency of the New York State Department of Transportation which indicated that defendant had no maintenance responsibilities regarding the situs of the accident. Rather, pursuant to Highway Law Section 140(18), the maintenance of the sidewalk is the responsibility of the town in which the sidewalk is located (see Van Etten v State of New York, 103 Misc 2d 487 [State is not responsible to maintain sidewalks, rather it is the town’s responsibility]). Thus, the proposed claim does not have an appearance of merit as asserted against the State of New York (see Schepart v State of New York, Ct Cl, Nov. 8, 2004, Hudson, J., Motion M-68986 [“There is no evidence that the State owned or constructed the walkway in question, or had any role in the installation or maintenance ***. That an unnamed attorney representing another party expressed a belief that the State was involved in the development or construction of the path cannot substitute for some showing on knowledge.”]). In any event, the Court will address the other factors considered on a late claim application.

Most significant, is the appearance of merit of the proposed claim (see Dippolito v State of New York, 192 Misc 2d 395). 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). “A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action” (Witko v State of New York, 212 AD2d 889, 891). Movant did not submit a report, a witness statement, or a medical record establishing that defendant’s alleged negligence was a proximate cause of the alleged accident (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]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness’ statement]). Merely submitting a photograph of the alleged accident site does not establish the appearance of merit of the proposed claim (see Matter of Gallagher v State of New York, 236 AD2d 400 [nine-month delay caused State substantial prejudice and claimant did not establish appearance of merit merely by submitting a photograph of the accident site]; see also Klingler v State of New York, 213 AD2d 378 [claimants’ unsupported opinion does not suffice to establish merit of their claim]). Additionally, movant’s delay has substantially prejudiced defendant because the State was not afforded the opportunity to timely investigate the circumstances underlying the claim (see Nicometti v State of New York, 144 AD2d 1036 [delay was inexcusable and prejudiced the State because they had not investigated the accident]).

Accordingly, movant’s motion for leave to file and serve a late claim is DENIED.

February 13, 2009
White Plains, New York

Judge of the Court of Claims