New York State Court of Claims

New York State Court of Claims

FAGAN v. THE STATE OF NEW YORK, #2009-038-537, Claim No. 115828, Motion No. M-76048


Synopsis


Motion to file and serve a late claim granted. Notice of intention was timely served and claim was timely filed. The only factor of Court of Claims Act § 10(6) that weighed against the motion was the lack of excuse for failure to serve the claim upon the Attorney General.

Case Information

UID:
2009-038-537
Claimant(s):
DEBORA Y. FAGAN
Claimant short name:
FAGAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115828
Motion number(s):
M-76048
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
BURKE, SCOLAMIERO, MORTATI & HURD, LLPBy: Judith B. Aumand, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Thomas R. Monjeau, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 21, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion pursuant to Court of Claims Act § 10 (6) for permission to file a late claim. Claimant seeks compensation for injuries allegedly sustained on September 15, 2006 when she fell into a drainage pipe ditch on the premises of a State campground. It is undisputed that a notice of intention to file a claim was timely served on the Attorney General on October 24, 2006 (see Aumand Affirmation, Exhibit B), and that a verified claim was timely filed with the Clerk of the Court of Claims within two years of the date of accrual of the claim (see Court of Claims Act § 10 [3]; Verified Claim, No. 115828, filed Sept. 12, 2008). Claimant, however, failed to serve the claim on the Attorney General as required by Court of Claims Act § 11(a)(i). Apparently recognizing that the lack of service would cause the claim to be jurisdictionally flawed (see Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]), claimant seeks permission to serve and file a late claim. The motion is opposed by defendant.[1] In deciding a motion to file a late claim, Court of Claims Act § 10 (6) requires the Court to consider, among other factors, “whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the movant has any other available remedy.” The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court.

While claimant contends that the “delay in serving the Attorney General with the timely filed Verified Claim is excusable” (see Aumand Affirmation, ¶ 11), claimant has not tendered any excuse for the failure to timely serve the claim on the Attorney General. Inasmuch as claimant was represented by counsel at the time the notice of intention was served and because the claim was timely filed by counsel, the failure to serve the claim upon the Attorney General is attributable to some manner of law office failure, which is not excusable (see Spickerman v State of New York, 85 AD2d 60, 61 [3d Dept 1982]); Allstate v State of New York, UID # 2007-018-562, Motion No. M-72490, Fitzpatrick, J. [Mar. 15, 2007]). The lack of an acceptable excuse for the late filing weighs against movant’s application.

Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). As noted above, claimant timely served a notice of intention to file the claim approximately six weeks after accrual of the claim, thus well within the 90 day period set forth in Court of Claims Act § 10 (3). Moreover, defendant does not contend that it lacked notice of the essential facts or that it lacked the opportunity to timely investigate the claim. Indeed, claimant asserts that defendant had contemporaneous actual knowledge of the incident inasmuch as an employee of defendant observed claimant shortly after her fall, and an incident report was completed (see Aumand Affirmation, ¶ 16; Aumand Reply Affirmation, Exhibit B; see e.g. Lufker v State of New York, 239 AD2d 565, 565-566 [2d Dept 1997] [report of SUNY campus police provided defendant with actual notice of incident]). Although defendant contends that the notice of intention that was served “is basically a compendium of conclusory and generic allegations” (Monjeau Affirmation, ¶ 16), suggesting that it lacked sufficient information to investigate the claim, the Court does not agree. The notice of intention includes specific information that is of the type required by Court of Claims Act § 11(b) – “the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained” (see Aumand Affirmation, ¶¶ 3, 4, 6), which appear sufficient to provide a foundation for an investigation of the claim. Notably, defendant does not claim that it suffered substantial prejudice flowing from the claimant’s failure to timely serve the claim. Accordingly, the factors of notice, opportunity to investigate, and lack of substantial prejudice to defendant all weigh in claimant’s favor.

The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he will prevail on his claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Here, the proposed claim alleges (1) that a dangerous condition existed on property that was owned, controlled and/or maintained by defendant, (2) that defendant was negligent in its design, construction and maintenance of the drainage pipe ditch and/or was negligent in failing to warn of the danger of the hazardous condition, and (3) that defendant failed to provide adequate lighting. Clearly, these allegations satisfy the appearance of merit inquiry of Court of Claims Act § 10 (6). To the extent defendant implies that the claim is without merit because the injury- producing accident was actually claimant’s fault because she was walking at night without a working flashlight, such facts would go to the issue of claimant’s comparative fault, and not to the issue of the appearance of merit of the claim.

Finally, claimant asserts that she has no other available remedy, an assertion that is undisputed by defendant and accepted by the Court.

In sum, all of the factors set forth in Court of Claims Act § 10 (6) weigh in claimant’s favor but for an acceptable excuse for the delay in serving the claim. The motion for permission to file a late claim was made slightly more than three months after the expiration of claimant’s time to serve the claim as of right. In light of defendant’s actual notice of the injury-producing incident and the timely service of a notice of intention, the failure to serve the claim does not appear to have affected defendant’s investigation of the claim or caused it substantial prejudice in any other way, and thus, claimant’s lack of an acceptable excuse does not weigh heavily against claimant’s motion. The claim has the appearance of merit, and claimant has no other available remedy. Considering and weighing all of these factors, the Court concludes that the motion for permission to file a late claim should be granted. Further, inasmuch as the proposed claim has already been filed and assigned Claim No. 115828, claimant will not be required to re-file the claim, and the matter shall proceed under Claim No. 115828.

Accordingly, it is

ORDERED, that Motion No. M-76048 is GRANTED, and it is further

ORDERED, that claimant is directed to serve a copy of the claim that was filed on September 12, 2008 (Claim No. 115828) in accordance with the requirements of sections 11 (a) (i) of the Court of Claims Act and 22 NYCRR § 206.5 (a) , not later than thirty (30) days after the date of filing of this Decision and Order.

April 21, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Verified Claim No. 115828, filed September 12, 2008;

(2) Notice of Motion, dated December 23, 2008;

(3) Affirmation of Judith B. Aumand, Esq., dated December 23, 2008, with Exhibits A-B;

(4) Memorandum of Law, dated December 23, 2008;

(5) Affirmation in Opposition of Thomas R. Monjeau, AAG, dated January 12, 2009,

with Exhibit A;

(6) Reply Affirmation of Judith B. Aumand, dated January 23, 2009, with Exhibits A-B;

(7) Sur-Reply Affirmation of Thomas R. Monjeau, AAG, dated February 2, 2009.


[1]. Defendant’s opposition to claimant’s motion was initially based, in part, upon deficiencies in the moving papers (see Monjeau Affirmation in Opposition, ¶¶ 4-6). Claimant subsequently cured those deficiencies, and, while maintaining substantive opposition to the motion, defense counsel has commendably withdrawn his opposition based upon the motion’s deficiencies (see Monjeau Sur-Reply Affirmation, ¶ 4).