New York State Court of Claims

New York State Court of Claims

LOMBARDO v. THE STATE OF NEW YORK, #2009-010-023, Claim No. NONE, Motion No. M-76901


Late claim application 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:
Defendant’s attorney:
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 17, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on movants’ application for leave to serve and file a late claim:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits........................1

Affirmation in Opposition and Exhibit.......................................................................2

The Proposed Claim arises out of an accident that occurred on October 16, 2008 when Julie Lombardo fell off her bicycle after striking a post located in the pathway of the North County Trailway at the corner of Birdsall Drive in Westchester County. A Notice of Claim was served upon the County of Westchester under the mistaken belief that it owned, operated and maintained the Trailway. On May 27, 2009 at the 50-H hearing, movants’ counsel was purportedly informed that, while the County was responsible for maintenance, the State designed the Trailway. Accordingly, movants bring the instant application seeking leave to serve and file a late claim against the State. 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. Movants’ 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, while movants’ attorney argued that “all indications from the Westchester County Parks Department website was [sic] that they were the ones who owned and were responsible for the site” (Attorney’s Affirmation, ¶ 19), defendant submitted information from the New York State Department of Transportation (NYSDOT) website which clearly indicated that the Trailway is owned and maintained by the NYSDOT and Westchester County Parks (Defendant’s Ex. A).

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). Movants 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, movants’ 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, movants’ motion for leave to file and serve a late claim is DENIED.

July 17, 2009
White Plains, New York

Judge of the Court of Claims