New York State Court of Claims

New York State Court of Claims

MURTI v. STATE OF NEW YORK, #2009-040-039, Claim No. NONE, Motion No. M-76246


Synopsis


Motion to late file a claim pursuant to Court of Claims Act § 10(6) granted in part and denied in part.

Case Information

UID:
2009-040-039
Claimant(s):
LUKMAN MURTI and FONNY MURTI
Claimant short name:
MURTI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-76246
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
The LaFave Law Firm, PLLCBy: Chad A. Jerome, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Stephen J. Maher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
April 30, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the application of Movants, Lukman Murti and Fonny Murti, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted in part and denied in part.

Movants’ motion is labeled as one to serve and file a late Notice of Intention to File a Claim. Court of Claims Act §10(6) provides only for the late filing of a Claim not a Notice of Intention to File a Claim (Holmes v State of N.Y., Roswell Park Cancer Inst. Corp., 5 Misc 3d 446 [Ct Cl 2004]; DeHart v State of New York, 92 Misc 2d 631 [Ct Cl 1977]). The Court will consider the application to be a motion for permission to serve and file a Claim late. The proposed Claim[1], attached to the affirmation of Chad A. Jerome in support of the motion as Exhibit C, asserts that, on July 10, 2008 between 9:00 and 9:30 p.m., Movant Lukman Murti fell in a parking lot owned and/or maintained by Defendant. It is further alleged that the parking lot is adjacent to a building located at 677 Broadway, Albany, New York. It is asserted that Lukman Murti was caused to fall over a raised manhole cover as a result of the State’s negligent maintenance of the area. While Fonny Murti is named as a Claimant in the caption of the proposed Claim, the Court notes that the proposed Claim does not assert a cause of action on Fonny’s behalf, only Lukman’s behalf.

In an affirmation submitted in support of Movants’ motion, Chad A. Jerome, Esq., asserts that on September 24, 2008, the Murtis served a Notice of Claim against the City of Albany with respect to this incident since the manhole cover in question had the wording “ALBANY SANITARY SEWER” imprinted on it (Jerome Affirmation, ¶ 8). On December 2, 2008, at an examination of Lukman Murti held pursuant to General Municipal Law § 50-h, counsel for the City of Albany indicated they did not believe the city was responsible for the subject manhole cover and they were investigating the matter further (id., ¶ 9). Mr. Jerome avers that, as of the date of his affirmation (February 6, 2009), he has not been informed by counsel for the City of Albany as to whether the city believes it has responsibility for the subject manhole cover. He further states that his office retained Four Corners Abstract, a title company, to conduct a deed search to determine the owner of the parking lot. Mr. Jerome avers that he was informed that the tax records indicate the owner of the parking lot is the State of New York (id., § 10; see also Ex. B attached to motion).

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed Claim asserts a cause of action for negligence (CPLR § 214[5]), a three-year statute of limitations applies and the motion is properly before the Court.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The Court finds Movants’ proffered excuse – that initially the City of Albany, rather than the State, appeared to be the proper defendant – is not a reasonable excuse (Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]; Hepner v State of New York, Ct Cl, Claim No. None, Motion No. M-76005, February 13, 2009, Ruderman, J. [UID No. 2009-010-002]). However, tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together.

In his affirmation in opposition to the motion, State’s counsel asserts that Movants did not establish that the State had notice of the accident, or investigated the incident, or had an opportunity to investigate the incident (Maher Affirmation, ¶ 10). He further asserts that the State will be substantially prejudiced by its inability to investigate the incident because of the passage of time, the absence of witnesses and the changes that may have occurred to the manhole cover in the time since the incident (id., ¶ 11). At best, the above statement can be considered as an argument that the State might be substantially prejudiced by the delay in filing. However, counsel has submitted only his own conclusory affirmation in this regard. There is no statement from a potential witness stating that the witness does not remember the event or that the State attempted an investigation and was unable to do so. The Court concludes that the State will not be substantially prejudiced by the approximately four- month delay between the expiration of the 90-day period and the making of this motion. Thus, the Court concludes these factors weigh in Movants’ favor.

The fifth factor to be considered is whether Movants have another remedy available. In this case, it appears Movants may have an alternate remedy, an action against the City of Albany, which they are pursuing.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movants’ burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movants to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movants to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).

At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movants. Based upon the entire record, the Court finds that Movants have come forward with sufficient information to establish that the parking lot where Lukman Murti fell is owned by the State of New York and that the proposed Claim has the appearance of merit regarding Lukman Murti’s cause of action. Movants need only establish the appearance of merit; they need not prove a prima facie case at this stage of the proceedings. As stated above, Fonny Murti is mentioned in the caption of the proposed Claim, but no cause of action is asserted in the proposed Claim on Fonny Murti’s behalf.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Lukman Murti’s favor but not Fonny Murti’s as no cause of action has been asserted on Fonny Murti’s behalf. The mix of circumstances presented by this case falls well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L. 1976, Ch. 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, supra). Movants have provided ample basis for a favorable exercise of this Court’s discretion to grant Lukman Murti leave to file a late claim against the State. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Lukman Murti shall file with the Clerk of the Court his proposed claim, in his name alone, against the State, and serve a copy of the proposed claim upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.


April 30, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read on Movants’ application for permission to file a late claim:
Papers Numbered


Notice of Motion, Affirmation in Support &
Exhibits attached 1

Affirmation in Opposition 2

Reply Affirmation 3


[1].The document is labeled a Notice of Intention to File a Claim but the Court will consider it a proposed Claim as it contains all the information required of a Claim as set forth in Court of Claims Act §11(b).