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
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
, 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
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,
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.