Late claim motion was denied.
|Claimant(s):||GEICO INDEMNITY COMPANY AS SUBROGEE OF SOPHIA V. McGREGOR|
|Claimant short name:||GEICO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Law Office of Ricky J. Lucyk
By: William Lantier, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Gwendolyn Hatcher, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||October 1, 2009|
|See also (multicaptioned case)|
Geico Indemnity Company ("Geico"), as subrogee of Sophia V. McGregor ("McGregor"), moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In the proposed claim, it is alleged that:
On September 17, 2008, there was a motor vehicle accident involving a vehicle owned by claimant['s] subrogor, Sophia V. McGregor. The automobile accident occurred when claimant['s] subrogor's 2003 Dodge Caravan 4X2 SE struck a raised manhole cover on the Van Wyck Expressway at or near Atlantic Avenue, in the County of Queens, City and State of New York.
Claimant seeks $4,813.76 for property damage and $49.26 for "personal injury protection benefits."
In order to determine this motion, six factors enumerated in the Act must be considered, i.e., whether: (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable; and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.(1)
As to notice, it is undisputed that defendant was unaware of the alleged accident until the making of this motion, i.e., 10 months later, and this factor has thus not been met. As to opportunity and prejudice, the only information provided as to the location of the accident is that it was on the Van Wyck Expressway "at or near" Atlantic Avenue. There is no indication whether McGregor was driving northbound or southbound or which lane she was in. As to these two factors, claimant is, at best, on the cusp of satisfying them.
As to an alternate remedy, notwithstanding a letter from the City of New York stating that the State "may be responsible," (see letter from Mark Goret annexed as part of exhibit B to claimant's moving papers), Geico may have a remedy against the City of New York. See article XII-B of the Highway Law (§§349-b through 349-f). With regard to excuse, claimant essentially states that it was unclear whether the proper defendant was the City or the State. This is not an excuse recognized for the purposes of the Act. See, e.g., Matter of E.K. v State of New York, 235 AD2d 540 (2d Dept 1997), lv denied, 89 NY2d 815 (1997).
Finally, with regard to whether the claim appears meritorious, claimant has failed to submit an affidavit from McGregor or anyone else with knowledge of the accident, and no police report or other contemporaneous record of the accident has been provided or, for that matter, a bill for repairs. In view of the foregoing, claimant has failed to demonstrate merit for the purposes of the Act. See Sands v State of New York, 49 AD3d 444 (1st Dept 2008).
Accordingly, having considered the six factors in view of the parties' submissions(2) , IT IS ORDERED that motion no. M-76972 be denied.
October 1, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
2. The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A through C; and defendant's affirmation in opposition.