New York State Court of Claims

New York State Court of Claims

LIBERTY MUTUAL a/s/o FISHER v. NEW YORK STATE THRUWAY AUTHORITY, #2009-029-065, Claim No. None, Motion No. M-76904


Synopsis


Late filing motion granted. Claim alleges vehicle damage caused by defective construction plates on Tappan Zee Bridge. Defendant had timely notice of continuing problem and claim has the appearance of merit.

Case Information

UID:
2009-029-065
Claimant(s):
LIBERTY MUTUAL INSURANCE COMPANY a/s/o LEONARD FISHER
Claimant short name:
LIBERTY MUTUAL a/s/o FISHER
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-76904
Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
CARL S. YOUNG & ASSOCS.By: Carl S. Young, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Vincent Cascio, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 4, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant moves for permission to file a late claim seeking damages of $11,680.73, representing payments made to its insured, Leonard Fisher, arising out of an August 26, 2008 incident in which Fisher’s vehicle was allegedly damaged due to negligently installed steel plates on the roadway of the Tappan Zee Bridge.

Claimant relates that it did not conclude its investigation of the incident – which included defendant’s response to a FOIL request that disclosed 17 complaints between April and November 2008 of tire damage caused by the steel plates and their bolts – until after expiration of the statutory 90-day period in which to file a claim. The instant motion ensued.

Court of Claims Act § 10(6) grants the court the discretion to allow the filing of a late claim, upon consideration of all relevant factors, including whether claimant’s delay was excusable, whether defendant had timely notice of and the opportunity to investigate the pertinent facts, whether defendant would suffer substantial prejudice should late filing be allowed, whether the claim has the appearance of merit and whether claimant has an alternate remedy.

Although claimant’s delay in properly instituting suit or preserving its right to do so by serving a notice of intention to file a claim cannot be considered excusable, the balance of the statutory factors favor granting the application.

Defendant does not dispute that claimant’s subrogee submitted a Thruway Authority claim form, within 90 days of the incident, stating that on August 26, 2008, while driving from Westchester to Rockland, his vehicle struck a plate that punctured his right front tire, caused his airbags to inflate and damaged the underside of the vehicle. Thus, defendant had timely notice of the facts giving rise to the proposed claim and the timely opportunity to investigate. The court finds as well that defendant had notice of a continuing problem with the plates in the roadway during the spring and summer of 2008, as evidenced by the other damage claims it received during this period. Defendant does not allege that it would suffer any prejudice should the late filing application be granted, and the court perceives no such prejudice. Additionally, claimant has no remedy other than the claim it seeks permission to file against the defendant, the owner and operator of the bridge.

At this stage, claimant need not prove its case, only demonstrate that the proposed claim appears to be meritorious. Notwithstanding that the damage claims received by defendant appear to relate to problems with the steel plates at various locations on the bridge, not necessarily the precise location of the subject incident, these reports are sufficient for the court to find the appearance of merit to the proposed claim. In order for a proposed claim to have the appearance of merit within the meaning of the statute, it must appear that it is not patently groundless, frivolous or legally defective and that 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). Given claimant’s relatively short delay in proceeding and the complete lack of prejudice, claimant’s submission meets this rather minimal burden (Jomarron v State of New York, 23 AD3d 527), with the understanding that the burden of establishing negligence on the merits will be much higher.

Accordingly, the motion is granted. Claimant may serve and file its claim, in accordance with all of the relevant provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, within 30 days of the filing date hereof. The court notes that the proposed claim refers to a schedule of damages which was not annexed to the copy submitted as an exhibit to the motion, a mistake that should be rectified prior to service and filing of the claim.

September 4, 2009
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims


Papers considered:


Notice of Motion, Affidavit, Affirmation and Exhibits

Affirmation in Opposition

Reply Affirmation