New York State Court of Claims

New York State Court of Claims

DELANO v. NEW YORK STATE THRUWAY AUTHORITY, #2009-030-508, Claim No. NONE, Motion No. M-76060


Synopsis


Late claim motion granted. Accident involving New York State Thruway Authority vehicle and claimant. If Vehicle and Traffic Law §1103(b) applies would be a trial issue. Statute should not have the preclusive effect of preventing late filing of a claim since only the appearance of merit need be shown, and there are issues of fact as to merit in any event

Case Information

UID:
2009-030-508
Claimant(s):
PAUL D. DELANO and KATHLEEN DELANO
Claimant short name:
DELANO
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-76060
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LAUB DELANEY LLPBY: MONTGOMERY J. DELANEY, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
February 18, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimants’ motion for late claim relief:

1-4 Notice of Motion; Affirmation in Support by Montgomery J. Delaney, attorney for Claimants; Affidavit by Paul D. Delano; Verified Claim; attached exhibits

  1. Filed Papers: Claim Number 116239 filed December 24, 2008

No Opposition filed.

Paul D. Delano and Kathleen Delano allege in their proposed claim that on November 22, 2006 at approximately 12:35 p.m. Mr. Delano was driving Ms. Delano’s car in the right lane of westbound Interstate 84 on his way home from work, behind a New York State Thruway Authority [NYSTA] pick-up truck driven by NYSTA employee Robert I. Bates. Suddenly, Mr. Bates slowed down, in what appeared to be an attempt to go onto the westbound shoulder where another NYSTA vehicle was parked. The sudden “reckless” deceleration, occurring without any warning, forced claimant[1] to try to avoid contact with the vehicle driven by Mr. Bates, and further caused claimant’s car to come into violent contact with both the parked vehicle, and the one driven by Mr. Bates. [See Verified Claim, ¶¶3-5]. As a result of the accident, claimant sustained serious injury to his left knee and hip, requiring two surgeries. [Affidavit of Paul D. Delano, ¶5]. The car was completely destroyed. [Ibid. ¶4]. A Notice of Intention to File a Claim was served upon the NYSTA and upon the Attorney General’s Office on or about January 23, 2007. [Ibid. ¶2]. Having timely served a Notice of Intention, it was incumbent upon claimant to serve and file a claim within two (2) years of the accrual date of November 22, 2006. See Court of Claims Act §10(3).[2]

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time 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 . . .” Court of Claims Act § 10(6). Here, the applicable statute of limitations is three (3) years, thus the motion is timely premised on an asserted date of accrual of November 22, 2006. Civil Practice Law and Rules §214.

A copy of the proposed claim[3], must accompany the motion, allowing the court to ascertain the particulars of the claim, including the date of accrual, location of the alleged accident, and what injuries are alleged. See Court of Claims Act §11(b); 22 NYCRR §206.6.

A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates 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 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.

As noted, this claim arises out of an accident occurring at approximately 12:35 p.m. on November 22, 2006. Although claimant timely served a Notice of Intention, counsel indicates that the matter was not calendered for service of the claim within two (2) years of accrual as required, and mistakenly set down for service of the claim three (3) years from the accrual date. Law office failure is generally not viewed as a reasonable excuse. See Nyberg v State of New York, 154 Misc 2d 199, 200 (Ct Cl 1992). An excuse, however, is but one of the factors to be considered, and its presence or absence does not conclude whether late claim relief is afforded. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

Claimant has a partial alternate remedy in the form of a lawsuit against the driver of the truck, and has commenced a lawsuit against him in Dutchess County Supreme Court, thus this factor weighs against him. [Affirmation in Support by Montgomery J. Delaney, ¶8, Exhibit 2].

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant’s motion. While claimant has not appended a police accident report referred to, there are apparently records of the accident, and the Attorney General’s Office has been involved in the litigation in Dutchess County Supreme Court against the driver, having filed an answer. [See Affirmation in Support by Montgomery J. Delaney, ¶9, Exhibit 3]. A bill of particulars was also served on the Attorney General’s Office. [Ibid. ¶34, Exhibit 6]. The passage of time has not been so great that the State’s ability to investigate further is impeded to its prejudice, given that claim could have been served and filed as late as November 22, 2008, and this motion was promptly made. Cf. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and one and one-half months from date of accrual). Accordingly, these factors weigh in favor of granting the motion.

As noted, claimant need not establish a prima facie case but the appearance of merit. If the allegations in the claim are accepted as true for the purposes of the motion, claimant has made the requisite showing of merit in order to permit late filing of his claim. Indeed, “[e]ven if the excuse for failing to file a timely claim is ‘not compelling,’ the denial of a motion to file a late claim may . . . constitute an improvident exercise of discretion where the delay is minimal, the State suffered no prejudice, and there may be issues of fact as to the merits of the claim . . . (citations omitted.).” Jomarron v State of New York, 23 AD3d 527 (2d Dept 2005). No opposition to the requested relief has been filed in any event.

Since the accident involved a collision with what might be a work vehicle operated by the NYSTA, the provisions of Vehicle and Traffic Law §1103(b) concerning vehicles actually engaged in work on a highway as to the standard of care are likely implicated. Vehicle and Traffic Law §1103(b) provides in pertinent part that the rules of the road[4] and statutes governing motorists generally
“...shall not apply to persons, teams, motor vehicles , and other equipment while actually engaged in work on a highway . . . The foregoing provisions of this subdivision shall not relieve any person, or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others.”[5]


Ordinary negligence will not render a municipality or the State liable under this statute, assuming the NYSTA agents were actually engaged in highway work as defined therein and as interpreted in the case law. Thus when a county employee was operating a street sweeper as part of maintenance work on a public highway the county would be liable for injuries sustained by a motorist who collided with the sweeper only if the employee was acting with reckless disregard for the safety of others. Riley v County of Broome, 95 NY2d 455 (2000). The companion case to Riley v County of Broome, supra, involved a collision with a snow plow. See Wilson v State of New York, 95 NY2d 455 (2000). In both cases, while the operators’ acts could likely have been viewed as ordinary negligence, they were found not to have acted with reckless disregard for the safety of others. Recklessness “. . . requires evidence that ‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome . . . (citation omitted).” Saarinen v Kerr, 84 NY2d 494, 501 (1994).

The threshold issues to determine whether the statute applies are whether the actor is actually engaged in highway work and, if so, whether such conduct is done with reckless disregard for the safety of others. Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d 705 (2d Dept 2008); McLeod v State of New York, 8 Misc 3d 1009(A) (Ct Cl 2005). When the statute has not been applied, the employees were on their way somewhere else for example, or were using vehicles for purposes other than highway work at the time of the alleged misfeasance. See Davis v Incorporated Village of Babylon, 13 AD3d 331 (2d Dept 2004);[6] Marvin v Town of Middlesex, 2002 WL 58928, affd, 300 AD2d 1112 (4th Dept 2002).[7]

At this phase the applicability of the statute should not have the preclusive effect of preventing late filing of a claim since only the minimal burden of establishing the appearance of merit need be shown, and there are issues of fact as to the merits in any event. See O’Keeffe v State of New York, 40 AD3d 607 (2d Dept 2007).

Accordingly, and after careful consideration of all the appropriate factors, the court hereby exercises its discretion to find that claimant’s motion for permission to serve and file a late claim is hereby granted. Claimant is directed to serve a claim[8] similar to the one proposed, using the correct terminology - such as claim, claimant, and defendant - naming the NYSTA as defendant and including the information required by the statute and the court rules. See Court of Claims Act §11(b); 22 NYCRR §206.6. The claim should be served upon the NYSTA and the Attorney General’s Office, and should be filed with proof of service with the Chief Clerk of the Court of Claims, all within forty five (45) days from the date of filing of this decision and order, with such service and filing to be in accordance with the Court of Claims Act 11 and 11-a, and the Uniform Rules for the Court of Claims.

February 18, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. References to claimant hereafter are to Paul Delano, as Kathleen Delano was not present at the accident, and has largely derivative claims but for the property damage to her car.
[2]. Apparently, claimant served and filed a claim on or about December 24, 2008, in tandem with the service of the present motion, identical to the proposed claim herein. See Claim Number 116239. While clearly subject to dismissal, no action has been taken by the parties to clarify matters.
[3]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . . ”
[4]. Vehicle and Traffic Law, Title VII - Rules of the Road.
[5]. See also Vehicle and Traffic Law §1104 exempting police and other authorized emergency vehicles during emergency operations; and Vehicle and Traffic Law §1202(a) regulating stopping standing and parking from which hazard vehicles - such as street sweepers and snowplows - are exempted under 1103(b) also. “Thus, we conclude that section 1103(b) exempts from the rules of the road all vehicles actually engaged in work on a highway, including the ‘hazard vehicles’ in the cases before us.” Riley v County of Broome supra; Wilson v State of New York, 95 NY2d 455, 465 (2000).
[6].
Town street sweeper who crossed a double yellow line separating two directions of traffic striking the plaintiff’s car, who was traveling from one work site to another, was not actually engaged in highway work, and therefore ordinary negligence principles applied.
[7]. Defendant municipality held to ordinary negligence standard, when a pedestrian walking by parked car was struck by the car that was itself struck by snowplow backing up. Trial court said truck not actually engaged in highway work. When accident occurred, the plow was hauling gravel from town storage to the work site 4 miles away from accident site.
[8]. Again, the claim that claimants have already filed - apparently in tandem with making this motion, given claim number 116239, and identical to the proposed claim - is clearly subject to dismissal as untimely. No answer has been filed, nor has any pre-answer motion been made; nor have the claimants withdrawn the claim. Counsel are urged to withdraw Claim number 116239 to avoid any further confusion if they have not already done so.