New York State Court of Claims

New York State Court of Claims

GINLEY v. THE STATE OF NEW YORK,


NEW YORK DEPARTMENT OF TRANSPORTATION,


NEW YORK DEPARTMENT OF TRANSPORTATION REGION 5 WESTERN NEW YORK,


NEW YORK STATE THRUWAY AUTHORITY, #2009-037-023, Claim No. NONE, Motion No. M-76586


Synopsis



Case Information

UID:
2009-037-023
Claimant(s):
LORI GINLEY, Individually and as Parent and Natural Guardian of ANDREW J. GINLEY
Claimant short name:
GINLEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK,
NEW YORK DEPARTMENT OF TRANSPORTATION,
NEW YORK DEPARTMENT OF TRANSPORTATION REGION 5 WESTERN NEW YORK,NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-76586
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Siegel, Kelleher & Kahn, LLPBy: Timothy G. O’Connell, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Wendy E. MorcioAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2009
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Movants’ motion for leave to late file a claim:
  1. Notice of motion and affidavit of Timothy G. O’Connell, Esq. sworn to March 31,
2009, with annexed Exhibits A-I;[1]

  1. Supporting affidavit of Lori A. Ginley sworn to January 26, 2009;
  1. Supporting affidavit of Joanne Faber, LCPC sworn to February 5, 2009;
  1. Supporting affidavit of John A. Serth, Jr., P.E. sworn to March 24, 2009, with
annexed Exhibits A-E;

  1. Movants’ memorandum of law dated March 31, 2009;
  1. Opposing affidavit of Assistant Attorney General Wendy E. Morcio sworn to May
14, 2009, with annexed Exhibits A-B;

  1. Opposing affidavit of Andrew M. Nagy, P.E. sworn to May 13, 2009;
  1. Reply affidavit of Timothy G. O’Connell, Esq. sworn to June 11, 2009, with annexed
Exhibits A-D.

According to the proposed claim (attached to Attorney O’Connell’s reply affidavit as Exhibit D),[2] on November 21, 2007 Movants, Lori A. Ginley and her infant son Andrew J. Ginley, were seriously injured when the family vehicle in which they were passengers hydroplaned, hit a guide rail, and rolled down an embankment. Movants move for permission to file a late notice of intention to file a claim. Unfortunately, no such relief exists as § 10 (6) of the Court of Claims Act provides only for the late filing of a claim, not a notice of intention to file a claim (Murti v State of New York, Ct Cl, April 30, 2009, McCarthy, J., claim no. none, motion no. M-76246, UID # 2009-040-039).[3] In addition, Movants move for leave to treat the notice of intention dated October 4, 2008 as a claim. Pursuant to § 10 (8) (a) of the Court of Claims Act, Movants may move for leave to treat a timely served notice of intention as a claim. In order to be timely, the notice of intention had to be served within 90 days of accrual of the claim. Here, however, the notice of intention was served almost one year after the claim accrued. Because the notice of intention was not timely served, it may not be treated as a claim under § 10 (8) (a) of the Court of Claims Act. The only remedy available to Movants is to move for leave to late file a claim pursuant to § 10 (6) of the Court of Claims Act.

A late claim motion is unnecessary, however, with respect to the infant Movant, Andrew Ginley. Court of Claims Act § 10 (5) provides that a person who is under a disability may file a claim within two years after the disability is removed. Infancy is considered a disability under this section of the Court of Claims Act (Barrett v State of New York, 161 AD2d 61 [1990], affd 78 NY2d 1111 [1991]). Because Andrew Ginley is still an infant (date of birth January 19, 1998),[4] a claim on his behalf may be brought without the requirement of a late claim motion. Thus, the motion to late file a claim on behalf of the infant Movant is denied as moot.

With respect to any derivative claim or separate claim for personal injuries by Movant Lori Ginley, the Court must initially determine whether her motion to late file a claim was filed within the period of time when “a like claim against a citizen of the state” would not be precluded by the applicable CPLR statute of limitations (Court of Claims Act § 10 [6]). The failure to file a late claim motion within the prescribed time period creates a fatal jurisdictional defect (Byrne v State of New York, 104 AD2d 782 [1984], lv denied 64 NY2d 607 [1985]). The negligence cause of action alleged in the proposed claim is governed by the three-year statute of limitations set forth in CPLR § 214. Because Mrs. Ginley’s motion was filed within three years of November 21, 2007, the date of the alleged incident, it is timely.

Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of many factors including: 1) whether the delay in filing and serving 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 to be meritorious; 5) whether substantial prejudice to the State resulted from the failure to timely serve a claim upon the Attorney General; and 6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. Basically, Mrs. Ginley (hereinafter the Movant) argues that she was too consumed with the care and treatment of her child to consider contacting a lawyer. While her concern is laudable, it has been held not to suffice as a reasonable excuse for the late filing of a parent's derivative claim (Porreca v State of New York, 28 Misc 2d 1098 [1961]). Nor would it be sufficient to excuse the late filing of a claim on Movant’s own behalf. Here, it has been alleged that Mrs. Ginley suffered a fracture of her left arm and post traumatic stress disorder. Nothing in the motion papers, however, indicate that she was hospitalized or restricted to bed for ninety days after the accident, or otherwise unable to contact a lawyer within the ninety-day statutory time for commencing a claim. In fact, Mr. Ginley, the driver of the family vehicle at the time of the incident, apparently returned to the area one week after the accident to take photographs (see Movant’s Exhibit F) and either Mr. or Mrs. Ginley or both were able to report the incident to their insurance company within days of the accident (see Travelers’ response dated December 3, 2007 attached as Movant’s Exhibit H). Accordingly, this factor weighs against the granting of the motion. The lack of an excusable delay is, however, only one of the factors to be considered by the Court.

The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movant alleges that because a police accident report was prepared (Movant’s Exhibit E), because “NYTEC” was notified and because the New York State Department of Transportation billed the Ginleys insurance carrier five and a half months after the incident for the cost of repairing or replacing the guide rail (Movant’s Exhibit G), that the State had sufficient notice and the opportunity to investigate. The mere completion of a police report, however, does not constitute notice to the State (Rizzo v State of New York, 2 Misc 3d 829 [2003]). The notification to “NYTEC” indicated on the police report presents a different issue. Defendant argues that “NYTEC” may actually refer to the Niagara International Transportation Technology Coalition (NITTEC), a group of 14 agencies from Western New York and Southern Ontario that provides traffic management systems to ensure safety and efficiency of the regional transportation system. NITTEC is apparently not a State agency (see Ms. Morcio’s May 14, 2009 affidavit and Exhibit B to her affidavit). Without a statement from the officer who completed the police report, the Court can not determine what the officer meant by his notation “NYTEC NOTIFIED.” It is known, however, that the New York State Department of Transportation (DOT), the State agency allegedly responsible for the construction, maintenance and upkeep of Route 400, somehow learned of the incident and of the damage to the guide rail, estimated the cost to repair or replace the guide rail, identified the vehicle that hit the guide rail and its owner and insurance carrier, and was able to bill the carrier for the damage to the guide rail all within five and a half months of the incident (see Movant’s Exhibit G). If the DOT did not do a thorough investigation of the incident at the time it was first notified, it surely had at least the opportunity to do so. In addition, because of the notification and opportunity to investigate, the Court can not conclude that the State would be prejudiced if the motion to late file was granted. Accordingly, the factors of notice, opportunity to investigate and lack of prejudice all weigh in favor of granting the motion.

The next and often considered the most decisive factor is merit as it would be futile to allow a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). Movant must demonstrate that the proposed claim is not “patently groundless, frivolous, or legally defective” and that there is reasonable cause to believe that a valid cause of action exists (id. at 11). In support, Movant provides an expert affidavit of John A. Serth, Jr., P.E., copies of photographs of the scene and vehicle involved ( Exhibit B to Mr. Serth’s affidavit), portions from the DOT guide rail training manual (Exhibit D to Mr. Serth’s Affidavit), and a page from “Consumer Reports New Car Buying Guide 2004-05" describing a Dodge Caravan (Exhibit E to Mr. Serth’s affidavit). Mr. Serth opines that the accident was the result of the Defendants’ negligence. Based on this expert affidavit and the Exhibits attached thereto, the Court concludes that Movant has satisfied her burden of showing that the proposed claim is not groundless, frivolous or legally defective, and that there is cause to believe that a valid cause of action exists (id.).

Movant’s expert does, however, state in his affidavit that the New York State Department of Transportation “was responsible for the design, construction and maintenance of Route 400 where the accident took place including the pavement and the guide rail.” (see ¶ 2 of Mr. Serth’s affidavit). This statement seems to comport with the affidavit of Andrew M. Nagy, claims engineer for the New York State Thruway Authority, who avers that the New York State Thruway Authority does not, own, operate or maintain the site of the accident. Thus, while Movant’s papers show the existence of merit with respect to a negligence claim against the DOT, there does not appear to be any merit to a proposed claim against the New York State Thruway Authority. Thus, the merit factor weighs in favor of the motion, but only with respect to the proposed claim against the DOT.[5]

With respect to the final factor to be considered, Defendants correctly note that Movant has a viable claim against William Ginley, the driver of the family vehicle, and possible actions against the manufacturers of the tires and of the vehicle involved. This factor weighs against the granting of the motion.

Upon balancing all of the factors set forth in § 10 (6) of the Court of Claims Act, the Court concludes that these factors weigh in favor of Movant, Lori Ginley’s motion to late file a claim solely against the State of New York for the possible negligence of the DOT which comports with the requirements of § 11 (b) of the Court of Claims Act.

Accordingly, it is hereby

ORDERED, that the motion to late file a claim brought on behalf of the infant Movant, Andrew Ginley, is denied as moot, and it is further

ORDERED, that the motion to late file a claim brought on behalf of Lori Ginley is granted and a claim shall be filed and served in accordance with the requirements of §§ 10, 11 and 11-a of the Court of Claims Act against the State of New York only within 45 days of the filing of this decision and order.



July 21, 2009
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1].The original affidavit filed by Attorney O’Connell was unsworn. A duplicate original sworn affidavit was filed on June 18, 2009 as Exhibit C to Attorney O’Connell’s reply affidavit.
[2].An action is commenced in the Court of Claims by the filing of a claim, not a “notice of claim.” Accordingly, the notice of claim attached to Movants’ reply affidavit will be referred to as the proposed claim which must accompany a motion for leave to late file a claim pursuant to § 10 (6) of the Court of Claims Act.
[3].Court of Claims decisions may be found on the Court’s web site at www.nyscourtofclaims.state.ny.us.
[4].The infant’s date of birth is provided in the March 31, 2009 affidavit of Attorney O’Connell and in the medical records accompanying his affidavit as Exhibit C.
[5].The New York State Department of Transportation is a State agency without independent legal existence. Accordingly, any claim against the DOT would be properly captioned as against the State of New York.