New York State Court of Claims

New York State Court of Claims

DRECKMANN v. THE STATE OF NEW YORK, #2009-030-513, Claim No. NONE, Motion No. M-75971


Late claim motion granted. Appearance of merit to claim alleging claimant slipped and fell on uneven road and sidewalk in construction area. Carefully worded DOT affidavit does not refute allegation that the route was a State road and contractors - hired by somebody - were working there

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
February 4, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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

1-3 Notice of Motion; Affirmation in Support by Phillip A. Grimaldi, Jr., Attorney for Claimant; Affidavit by Max Dreckmann, attached exhibits

4,5 Affirmation in Opposition by John M. Healey, Assistant Attorney General; Affidavit by Thomas Mason, Assistant Resident Engineer, New York State Department of Transportation [DOT]

  1. Reply Affirmation by Phillip A. Grimaldi, Jr.
Marge Dreckmann alleges in her proposed claim that on June 11, 2008 at approximately 10:40 a.m. she was walking on Harrison Avenue (Route 127) at the intersection with Halstead Avenue, in the Town/Village of Harrison, County of Westchester and State of New York when she was caused to fall in the roadway and suffer injury due to the State’s negligence premised upon the usual litany of ownership responsibility, including failure to maintain, repair, and control construction at the site of claimant’s accident. [See Exhibit D]. Although claimant timely filed Notices of Claim against the Town and the County, no notice of intention to file a claim was served upon the defendant within ninety (90) days of accrual, nor was a claim served upon defendant and filed with the Chief Clerk of the Court of Claims, within ninety (90) days of the accrual of the cause of action, all as required by Court of Claims Act §10(3).

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 June 11, 2008. Civil Practice Law and Rules §214.

A copy of the proposed claim[2], 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. While claimant has included a document entitled “Notice of Intention to File Claim” with the moving papers [Exhibit D] - rather than the proposed claim as required - its inclusion suffices to satisfy the court rules requirement noted since it essentially contains the information set forth in Court of Claims Act §11(b).

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 10:40 a.m. on June 11, 2008. Photographs taken by claimant’s son show paving equipment and what would seem to be the first phase of such paving over an uneven road and sidewalk surface. [Exhibit A]. An incident report by the Harrison Police Department memorializes the incident, and indicates that claimant, a ninety (90) year old woman, was transported by ambulance to Greenwich Hospital for treatment. [Exhibit B]. It is alleged that she fractured her tibia, broke her left foot and tore ligaments as well. [Exhibit D].

Ms. Dreckmann, through her attorney, initially pursued her claim against the Town and the County. Counsel notes that in or around October 2008 he was told by the Town Attorney that the Town was not performing work in the area at the time of the accident, but that it was “believed that the State of New York was doing work at the site, since Harrison Avenue is also known as State Route 127.” [Affirmation by Phillip A. Grimaldi, Jr., ¶5]. A diligent, if mistaken, pursuit of a claim against another governmental entity may constitute an excusable delay. Marcus v State of New York, 172 AD2d 724 (2d Dept 1991); Weaver v State of New York, 112 AD2d 416 (2d Dept 1985).

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 whatever construction company was engaged in the work, presumably, thus this factor is somewhat neutral.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant’s motion. There are records of the accident, including an incident report prepared by the Harrison Police Department. [Exhibit B]. The passage of time has not been so great that the State’s ability to investigate is impeded to its prejudice, [cf. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual)] indeed such investigation appears to have commenced given the defendant’s presentation of an affidavit from a DOT employee. [See Affidavit by Thomas Mason]. 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 her claim.

In this regard, the affidavit presented by defendant by the DOT Assistant Resident Engineer for the Westchester County Residency is more notable for what it does not say for these purposes, than for what it does say. Mr. Mason indicates that the State of New York itself was not performing work at the site of the accident. [See Affidavit by Thomas Mason, ¶¶ 3 and 4]. Indeed, while he helpfully advises that he is familiar with the roads and roadways for which the State of New York is responsible within his residency, he does not add or refute that more interesting information that Route 127 is a State road, and whether any contractors other than the State were performing work. Based on claimant’s submission, somebody certainly was.

Since only the appearance of merit need be established, this very carefully worded affidavit does not change the fact that claimant has satisfied her minimal burden, although it does suggest issues of fact in the ultimate lawsuit.

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 similar to the one proposed, using the correct terminology - such as claim, claimant, and defendant - naming the State of New York as the only proper defendant, and including the information required by the statute and the court rules. See Court of Claims Act §11(b); 22 NYCRR §206.6. She should serve defendant and file same 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, with particular reference to §§ 11, and 11-a.

February 4, 2009
White Plains, New York

Judge of the Court of Claims

[2]. 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 . . .”