New York State Court of Claims

New York State Court of Claims

VESPA ROACH v. NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, #2009-015-138, Claim No. None, Motion No. M-75839


Synopsis


Movant's application for late claim relief was denied as unnecessary with respect to the proposed claim on behalf of her infant daughter and granted on her individual behalf. Notably, compliance with General Municipal Law provisions referenced in Public Authorities Law § 2622 is unnecessary for actions commenced in the Court of Claims.

Case Information

UID:
2009-015-138
Claimant(s):
KIMBERLY VESPA ROACH, Individually and as Parent and Natural Guardian of EMMA ROACH, a Minor
Claimant short name:
VESPA ROACH
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-75839
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Harris, Conway & Donovan, PLLCBy: Michael C. Conway, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 13, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant, Kimberly Vespa Roach, individually and as parent and natural guardian of Emma Roach, a minor, moves pursuant to Public Authorities Law § 2622 [1] and General Municipal Law § 50-e to file a late claim or notice of claim against the respondent Olympic Regional Development Authority (ORDA). Emma Roach allegedly fractured her leg on March 9, 2008 while using a saucer-type sled to slide down a ski slope at Whiteface Mountain. At the time of the accident Emma was 12 years of age and was allegedly attending a ski club meeting supervised by employees of ORDA. Emma's mother, the movant herein, sets forth in an affidavit that it was her understanding that Whiteface Mountain was closed on the date of the accident due to icy conditions. Nevertheless, movant dropped her daughter off at approximately 9:00 a.m. to attend the ski club activities because it was her understanding that there was a party for the ski club members later in the morning and that the children would watch movies and be supervised by ORDA employees. Movant avers that notwithstanding the icy conditions her daughter's coach, "Dave", who she believes was an employee of ORDA, allowed her and a friend to slide down the mountain on a saucer. She states that her daughter struck a tree on her first run down the ski slope, fracturing her leg. When the movant was notified of the accident she returned to the mountain where "Dave" and Pat Simpson, the Director of ORDA, admitted to her that "they had allowed my daughter to go sledding on the ski slope, which was otherwise closed due to icy conditions" (affidavit of Kimberly Vespa Roach, ¶ 9).

As acknowledged by defense counsel, leave to file a late claim is unnecessary with respect to the infant Emma Roach. Court of Claims Act § 10 (5) provides "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." CPLR 208 provides that where a person entitled to commence an action is under a disability because of "infancy" or "insanity" at the time the cause of action accrues, the time for commencement of an action shall, with some limitations not applicable here, be extended by the period of disability (see also Court of Claims Act § 9 [9]; Henry v City of New York, 94 NY2d 275, 279-280 [1999]; Boland v State of New York, 30 NY2d 337 [1972]; Weber v State of New York, 267 App Div 325 [1944]). Inasmuch as Emma Roach was 12 years of age at the time of the accident, her time to serve and file a claim has not yet expired. As a result, the motion is denied as unnecessary with respect to the infant, Emma Roach.

Citing Public Authorities Law § 2622 (1), the movant seeks permission to file a late notice of claim or claim pursuant to General Municipal Law § 50-e. Section 2622 of the Public Authorities Law states in pertinent part the following:
1. In any case founded upon tort a notice of claim shall be required as a condition precedent to the commencement of an action or special proceeding against the authority or any officer, appointee or employee thereof, and the provisions of section fifty-e of the general municipal law shall govern the giving of such notice.

2. Except in an action for wrongful death, no action shall be commenced (a) prior to the expiration of thirty days from the date on which the demand claim or claims upon which the action is founded were presented to a member of the authority or other officer thereof designated for such purpose; nor (b) more than one year and ninety days after the cause of action therefor shall have accrued. An action against the authority for wrongful death shall be commenced in accordance with the notice of claim and time limitation provisions of title eleven of article nine of this chapter.


* * *


4. . . . exclusive jurisdiction is hereby conferred upon the court of claims to hear and determine any claim of any person brought hereafter against the authority to recover damages for injuries to property or for personal injury arising out of the operation by the authority of any participating olympic facility owned by the state or of the Gore mountain ski center, in the same manner and to the extent provided and subject to the provisions of the court of claims act with respect to claims against the state, and to make awards and render judgments therefor. The payment of awards and judgments for any such claims brought in the supreme court pursuant to this title or in the court of claims shall be made from appropriations for judgments against the state pursuant to section twenty of the court of claims act.

This Court has previously noted its agreement with the opinions expressed by former Judge Bell in Traina v New York State Olympic Regional Dev. Auth. (165 Misc 2d 870 [Ct Cl 1995]) and Judge Sise in Rosen v State of New York (Ct Cl, [Claim No. 106052, Motion No. M-66519, UID # 2003-028-570] Sise, J., unreported) that compliance with the General Municipal Law provisions referenced in Public Authorities Laws § 2622 is unnecessary for actions commenced in the Court of Claims (see Davey v New York State Olympic Regional Development Authority, Ct Cl, [Claim No. 111040, Motion No. M-71034, UID #2006-015-076] Collins, J., unreported). In Traina, the Court examined the interplay and inconsistencies between subdivisions (1), (2) and (4) of section 2622, concluding that subdivisions (1) and (2) do not apply in actions commenced in the Court of Claims. Notably, these subdivisions retain their vitality in actions brought against ORDA in the Supreme Court (see Bertolino v Town of N. Elba, 16 AD3d 805 [2005] [applying statute of limitations in Public Authorities Laws § 2622 [2] to bar a claim against ORDA in the Supreme Court]; Plath v New York State Olympic Regional Dev. Auth., 304 AD2d 885 [2003] [jurisdiction of the Court of Claims extends to actions against ORDA only in situations arising out of its operation of a State-owned Olympic facility or Gore Mountain Ski Center]). Thus, to the extent movant seeks to file a late notice of claim pursuant to General Municipal Law § 50 (e) it is unnecessary. The application of the movant Kimberly Vespa Roach to file late claim in her individual capacity will therefore be considered pursuant to Court of Claims Act § 10 (6).

The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." The proposed claim sounds in negligence and is therefore governed by the three year Statute of Limitations set forth in CPLR § 214. Movant's application is therefore timely (see Baker v Olympic Regional Development Authority, Ct Cl, [Motion No. M-62868, UID #2001-007-082] Bell, J., unreported).

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 the state; and, whether the claimant has any other available remedy." This Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).

The excuse advanced by the movant for the failure to timely serve and file her claim is that she was not aware of the 90-day period for commencement of an action in the Court of Claims and that in the months which followed the accident much of her time was spent dealing with her daughter's serious medical condition. In this regard movant states that her daughter underwent three surgeries for the injuries sustained in this accident, the last of which was performed in August 2008. The Court finds that the excuse advanced by the movant for the delay in filing the claim is reasonable given the circumstances of her infant daughter's condition (see Reinmuth v State of New York, 65 AD2d 648 [1978]).

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant avers that ORDA employees notified her of the accident and were conducting an investigation upon her arrival at the mountain. Defense counsel does not dispute this contention but asserts that given the eight-month lapse from the date of the accident to the filing of the instant motion, it will be prejudiced if the motion is granted on the basis of changed site conditions. In light of ORDA employees' immediate awareness of the accident and opportunity to investigate shortly thereafter, the Court finds the State's allegations of prejudice unpersuasive. These factors therefore weigh in favor of granting the motion.

With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]; Fowx v State of New York, 12 Misc 3d 1184 [2006] ). Movant seeks to recover for the loss of her daughter's services and out-of-pocket expenses incurred as the result of ORDA's alleged negligence in allowing her infant daughter to sled down a mountain under dangerously icy conditions. The Court finds movant's allegations of negligence are not patently meritless. It is well-settled that a parent has a right to recover for medical expenses incurred on behalf of a child he or she is obligated to support (McArdle v 123 Jackpot, Inc., 51 AD3d 743 [2008]; Clough v Board of Educ. of Spencerport Cent. School Dist., 56 AD2d 233 [1977]) and for loss of services, if any (Gilbert v Stanton Brewery, Inc., 295 NY 270 [1946]; PJI 2:317). Movant has therefore established at least the appearance of a meritorious claim. As to the final factor to be considered, it does not appear that movant has an alternative remedy for the losses she allegedly incurred in her individual capacity.

Based on the foregoing, the Court finds that the totality of factors weigh in favor of granting the movant's application to file a late claim in her individual capacity.

Accordingly, movant's application for leave to file a late claim in her individual capacity is granted and denied as unnecessary with respect to her infant daughter Emma Roach. Movant is directed to file and serve her claim in accordance with Court of Claims Act §§ 10, 11 and 11-a within 45 days of the date this Decision and Order is filed.



February 13, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated October 28, 2008;
  2. Affidavit of Kimberly Vespa Roach sworn to October 23, 2008;
  3. Affirmation of Michael C. Conway dated October 28, 2008 with exhibits;
  4. Memorandum of law of Michael C. Conway dated October 28, 2008;
  5. Affirmation of Stephen J. Maher dated December 9, 2008.