New York State Court of Claims

New York State Court of Claims

BACHISON v. THE STATE OF NEW YORK, #2009-031-031, Claim No. 115354, Motion Nos. M-76017, CM-76077


Claimant, who had filed a timely wrongful death claim, is granted persmission to late file a related “survival action.

Case Information

JANE A. BACHISON, as Executrix of the Estate of James H. Steinhoff, Sr., Deceased
1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended 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):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 17, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 through 8, were read on motion by Claimant for permission to file a late claim pursuant to Court of Claims Act (“CCA”) § 10(6), and on cross-motion by Defendant for an order dismissing portions of the claim:
1. Claimant’s Notice of Motion (M-76017), filed December 11, 2008;
2. Affidavit of Dale A. Ehman, Esq., sworn to December 8, 2008, with attached exhibits;
3. Defendant’s Notice of Cross-Motion (CM-76077), filed January 13, 2009;
4. Affirmation of Thomas G. Ramsay, Esq., dated January 12, 2009;
5. Affidavit of Dale A. Ehman, Esq., sworn to January 16, 2009;
6. Affidavit of Wallace J. Ochterski, P.E., sworn to January 15, 2009, with attached exhibit;
7. Reply Affirmation of Thomas G. Ramsay, Esq., dated March 13, 2009, with attached exhibit;
8. Affidavit of David C. Goehring, P.E., sworn to March 13, 2009. BACKGROUND

Claimant’s Decedent, 85-year-old James Steinhoff, Sr., was killed in a motor vehicle accident on June 29, 2007. The accident occurred at the intersection of New York State Routes 77 and 354 in the Town of Bennington, New York. At the time of the accident, the bridge which permitted traffic on Route 354 to pass over Route 77 unhindered, was under construction. Because of the construction project, traffic that would normally traverse the overpass was routed directly across Route 77 by means of the on and off ramps that led to and from the overpass. To control traffic at these construction-related “temporary intersections,” stops signs were erected for vehicles traveling on Route 354. Mr. Steinhoff was traveling east on Route 354 and New York State Trooper Michael Curran, traveling in an unmarked State Police vehicle, was traveling south on Route 77. The following are not disputed: 1) Mr. Steinhoff failed to comply with the stop sign, entered the intersection and collided with the vehicle driven by Officer Curran; 2) Officer Curran had the right-of-way; and 3) according to crash data recorder information, Officer Curran was traveling at 75 mph in a 55 mph zone just before the accident.

Claimant Jane A. Bachison was appointed executrix of Mr. Steinhoff’s estate on September 12, 2007, and a notice of intention to file a claim was served upon Defendant on October 9, 2007. The claim, filed on June 9, 2008, asserts causes of action for wrongful death, conscious pain and suffering and property damage.

CCA § 10(2) provides that a claim against the State for wrongful death must be filed with the clerk and served upon the Attorney General within 90 days after the appointment of a personal representative of the decedent, unless the claimant serves a notice of intention upon the Attorney General within that same time frame, in which case the claim must be served and filed within two years after the death of the decedent. Here, there is no dispute that the cause of action for wrongful death has been timely filed and served. However, the provision of CCA § 10(2), pertaining to wrongful death, does not apply to Claimant’s causes of action for pain and suffering and for property damage (Pelnick v State of New York, 171 AD2d 734). Rather, those actions are governed by CCA § 10(3), which requires that a claim be served and filed, or that a notice of intention be served, within 90 days after accrual of the cause of action. Here, neither a claim nor a notice of intention were served and/or filed within the requisite period of time. Accordingly, the claim is timely for the wrongful death cause of action (CCA § 10[2]), but untimely for the “survival” (conscious pain and suffering) and property damage causes of action (CCA § 10[3]).

Defendant has asserted in its answer, as the seventh and eighth affirmative defenses respectively, that Claimant’s causes of action for the decedent’s pain and suffering, and for property damage are untimely because Claimant failed to either serve a notice of intention, or serve and file a claim, within 90 days after accrual. With her motion, Claimant, apparently recognizing the validity of Defendant’s seventh and eighth affirmative defenses, has moved for permission to file a late claim to assert both the survival and the property damage causes of action. Defendant not only opposes this application but has cross-moved for dismissal of those causes of action as untimely.
Initially, I note that I have no choice but to grant Defendant’s cross-motion. As no claim was filed and served, and no notice of intention was served within 90 days of accrual, the causes of action for pain and suffering and for property damage are untimely. The requirements set forth in CCA § 10 are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). The Court is not free to disregard the requirements of this section. “[D]iscretion, equity, or a harsh result may not temper application of a rule of law” (Martin v State of New York, 185 Misc 2d 799, 804).
Claimant’s motion seeks permission to assert both the survival and property damage causes of action. Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion, balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979).

Of these six factors, Defendant disputes only merit, correctly pointing out that it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

In support of her application, Claimant has submitted the affidavit of Professional Engineer, Wallace J. Ochterski. Mr. Ochterski opines that Defendant “failed to properly plan the detour routing and placement . . . and failed to properly install the traffic control and work zone warning signs and paving markings” (Ochterski Aff., par. 10). Specifically, with regard to the signage and paving markings, he asserts that the Department of Transportation should have: 1) installed a “Stop Ahead” sign for traffic on Route 354; 2) placed stop lines on the pavement to indicate where to stop for best sight distance; and 3) covered or removed confusing directional signs on Route 77 to indicate the detour. He concludes that these failures, as well as the excessive rate of speed of the vehicle driven by Officer Curran, were the proximate causes of the accident.

In opposition to Claimant’s application, Defendant has submitted the affidavit of Professional Engineer, David C. Goehring. Mr. Goehring opines that the traffic control plan for the project was proper, that there were no violations of either the Manual of Uniform Traffic Control Devices or “accepted engineering judgment” relating to the design or implementation of the project. (Goehring Aff., par. 12). He also opines that Claimant’s expert’s opinions are not supported by the accident history at that location and that any deficiencies relating to signage on Route 77 are irrelevant because Claimant’s decedent was traveling on Route 354, not Route 77.

I find both experts qualified to provide the opinions contained in their respective affidavits. There are, however, certain obvious deficiencies in both. Mr. Ochterski, for example, when identifying the causes of the accident, fails to attribute any significance to the fact that Claimant’s decedent “ran” a stop sign and failed to yield the right-of-way to Officer Curran.

Mr. Goehring points out that there is no accident history to justify a “Stop Ahead” sign or stop lines on the pavement, however, the detour, which caused traffic to be routed directly across Route 77, had been operational for less than two days at the time of the accident. One would presume a limited accident history in that circumstance. Further, although Claimant’s decedent may not have been confused by the signage on Route 77, perhaps Officer Curran might not have been speeding had he received sufficient warning that traffic normally crossing the overpass was now being diverted over Route 77.

Finally, Defendant offers no opposition to Claimant’s contention that Officer Curran’s speed was a contributing cause of the accident.

I conclude, therefore, that Claimant has demonstrated that the proposed causes of action are neither “patently groundless, frivolous or legally defective,” and that there is “reasonable cause to believe a valid cause of action exists” (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

I note that the legal analysis of the motions at hand require that both Claimant’s motion and Defendant’s cross-motion be granted. Specifically, the causes of action that are properly dismissed and removed from the original claim pursuant to Defendant’s cross-motion are permitted to be filed again, pursuant to Claimant’s late claim application. As a practical matter, I find that the interests of judicial economy are best served by deeming the original claim amended as of the filed date of this order.

Accordingly, it is hereby

ORDERED, that Defendant’s cross-motion for dismissal of the First, Third and Fifth causes of action asserted in the claim is granted, and it is further

ORDERED, that Claimant’s motion for permission to file a late claim is granted, and it is further

ORDERED, that, as the causes of action dismissed pursuant to Defendant’s cross-motion are identical to the causes of action permitted to be filed in Claimant’s late claim application, the original claim in this matter shall be deemed amended as of the filed date of this decision and order, and it is further

ORDERED, that, to the extent Defendant desires to file an answer to the claim as amended, Defendant shall have 40 days from the filed date of this decision and order to serve such answer.

June 17, 2009
Rochester, New York

Judge of the Court of Claims