New York State Court of Claims

New York State Court of Claims

Cooper v. STATE OF NEW YORK, #2009-018-002, Claim No. None, Motion No. M-75405


Synopsis


Permission to file late claim is granted.

Case Information

UID:
2009-018-002
Claimant(s):
MOSES COOPER, INDIVIDUALLY and as ADMINISTRATOR OF THE ESTATE OF KENNETH COOPER
1 1.The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
Cooper
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-75405
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
CELLINO & BARNES, P.C.By: Elizabeth C. Clarke, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Edward F. McArdle, Esquire
Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 26, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant brings a motion seeking permission to file a late notice of intention to file a

claim pursuant to Court of Claims Act § 10(6). Court of Claims Act § 10(6), however, only authorizes this Court to grant permission to file a late claim, and the Court will consider Movant’s application as seeking permission to file a claim (Court of Claims Act § 10[6]). The Court will also treat the “Notice of Intention To file A Claim” as the proposed claim for purposes of the motion. The motion is timely brought (Court of Claims Act § 10[6]; CPLR 214[5] and EPTL § 5-4.1). Defendant opposes the motion.

Movant is the Administrator of the Estate of Kenneth Cooper who was injured as a passenger in a van owned by the New York State Office of Mental Retardation and Developmental Disabilities (hereinafter Office). The driver of the van was an employee of the Office. The accident occurred on February 21, 2008, when the van, traveling north on Route 21 in the Town of Palmyra, County of Wayne, struck a guardrail on the east side of the roadway, crossed over Goldsmith Road, entered a ditch on the east side of Route 21 and struck an earth embankment. The van became airborne and landed on its roof, coming to rest facing in a southerly direction. Kenneth Cooper died the next day from the injuries he sustained in the accident.

Court of Claims Act § 10(6) requires that the Court, in deciding an application for permission to file a late claim, give consideration to six factors: (1) whether there is a reasonable excuse for the delay in filing the claim; (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 notice of intention resulted in substantial prejudice to the State; (6) whether there is any other available remedy and any other relevant factors. There is no one factor that is determinative, rather it is a balancing of all of the factors that may warrant granting the application (Bay Terrace Cooperative Section IV, Inc., v New York State Employees’ Retirement System, Policemen’s and Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965).

The first factor is whether the delay in filing the claim is excusable. Movant’s counsel asserts that the decedent died on February 22, 2008, and a decree appointing Moses Cooper as Administrator was filed on May 14, 2008. A notice of intention to file a claim was served upon the Assistant Attorney General on July 2, 2008. Although timely for the wrongful death cause of action, no timely notice of intention was served for purposes of the personal injury cause of action (Court of Claims Act § 10[2], § 10[3]). It appears that the excuse is that Decedent’s family had the understanding that an administrator was necessary before a notice of intention could be served and they were proceeding to obtain Letters of Administration in Surrogate’s Court. However, because serving a notice of intention does not commence the action, legal authority to commence a lawsuit is not necessary to serve the notice of intention (Matter of Johnson v State of New York, 49 AD2d 136; Horeth v State of New York, 15 Misc 3d 1129[A]). Accordingly, no valid excuse has been set forth (see Matter of Galvin v State of New York, 176 AD2d 1185, lv denied 79 NY2d 753).

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Defendant acknowledges notice and an opportunity to investigate this incident. As a result, no prejudice is alleged or likely to be incurred if this application is granted.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. A proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199).

Movant alleges that the State and driver of the van were negligent and/or reckless as a result of the one vehicle accident. There is no indication why the van struck the guardrail. Although the allegations of negligence could be better described, given the circumstances of this accident, the proposed claim meets the minimum standards.

The final factor is whether the Movant has any other available remedy. Movant does not have another remedy.

Accordingly, upon balancing all of the factors in Court of Claims Act § 10(6), this Court GRANTS the movant’s motion to permit the late filing and serving of the proposed claim.[2] Movant has thirty (30) days from the date this Decision and Order is filed with the Clerk of the Court to properly serve and file the proposed claim and pay the required filing fee in accordance with Court of Claims Act §§11 and 11-a.



January 26, 2009
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affirmation of Elizabeth C. Clarke, Esquire, in support, with exhibits attached thereto.

3. Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General, in opposition, with exhibits attached thereto.


[2]. Reference in the document in Exhibit E to notice of intention to file a claim should be changed to reflect the proper language for a claim. In accordance with Court of Claims Act § 11, it should also be properly verified, and the defendant changed to reflect only the State of New York.