Late claim motion was granted.
|Claimant(s):||JOAQUIN A. LAGOMBRA|
|Claimant short name:||LAGOMBRA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the sole properly named defendant is the State of New York.|
|Motion number(s):||M-76494, M-77198|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Law Offices of Alana Barran, P.C.
By: Alana Barran, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 19, 2009|
|See also (multicaptioned case)|
In this claim, Joaquin A. Lagombra alleges that on March 24, 2007, he had an accident while riding on his motorcycle at Exit 19 of the eastbound Long Island Expressway ramp to Woodhaven Boulevard, in Queens County. Mr. Lagombra further alleges that the accident occurred because of an "improperly laid, broken, cracked, raised roadway . . ." Motion no. M-76494 is the Court's Order to Show Cause why the claim (no. 115496) should not be dismissed for lack of service on the State of New York. In motion no. M-77198, Lagombra moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). His late claim motion is unopposed by the State.
Claimant served a notice of intention on the State on May 22, 2007, i.e., within 90 days of accrual as is required by §10.3 of the Court of Claims Act. However, he did not then serve claim no. 115496 on the State within two years of accrual as required by §10.3.(2)
Claimant's late claim motion will thus be considered. In order to determine the motion, the Act sets forth six factors which are to be weighed(3) : 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 first three factors - whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are often intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, the State was served with a notice of intention less than two months after the accident, and upon its review (see exhibit A to claimant's motion), I find that these three factors have been met.
As to an alternate remedy, as set forth above, claimant has also sued the City of New York; the viability of such claim is unclear from the submissions. With regard to excuse, counsel has failed to offer an excuse that is satisfactory 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, it must be determined whether the proposed claim appears meritorious. Having reviewed the record as a whole, including the proposed claim verified by Lagombra, I find that claimant meets the standard for merit set forth in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." See also Sands v State of New York, 49 AD3d 444 (1st Dept 2008).
Accordingly, having reviewed the submissions and having considered the six factors(4) , IT IS ORDERED that claim no. 115496 be dismissed, and IT IS FURTHER ORDERED that motion no. M-77198 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file his proposed claim, naming only the State of New York as defendant, in compliance with §§11 and 11-a of the Court of Claims Act.
November 19, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. According to counsel for claimant, he "erroneously served [the State] with the Summons and Complaint in the Supreme Court action [against New York City] rather than with the Claim for Damages filed with [the Court of Claims]."
3. 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).
4. Along with the Court's Order to Show Cause, the following were reviewed: claimant's affirmation in opposition to motion no. M-76494 with exhibits A through D; and claimant's notice of motion no. M-77198 with affirmation in support and exhibits A through D. Defendant submitted no papers on either motion.