New York State Court of Claims

New York State Court of Claims

GALERIE v. THE STATE OF NEW YORK, #2009-040-070, Claim No. NONE, Motion No. M-76852


Synopsis


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

Case Information

UID:
2009-040-070
Claimant(s):
PATRICIA R. GALERIE andFRANCIS E. GALERIE
Claimant short name:
GALERIE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-76852
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Law Office of Paul Pelagalli, PLLCBy: Paul Pelagalli, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 17, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

For the reasons set forth below, the application of Movants, Patricia R. Galerie and Francis E. Galerie, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is granted in part and denied in part.

Movants’ move for the second time for permission to serve and file a late Claim pursuant to Court of Claims Act §10(6). In Galerie v State of New York (Ct Cl, Claim No. None, Motion No. M-76198, May 11, 2009, McCarthy, J. [UID No. 2009-040-041]), this Court held (slip opinion p. 3) that “the proposed Claim is jurisdictionally defective as it fails to assert the place where the accident occurred, ‘thereby failing to ‘state the ... place where such claim arose’ ’ ” (citations omitted) (id.). The Court denied the motion without prejudice to renewal.

The proposed Claim asserts that, on October 14, 2008 at approximately 1:15 p.m., Ms. Galerie was injured when the vehicle she was driving was struck by a vehicle “being pursued by several police cruisers, including New York State Police cruisers” (Proposed Claim, ¶ 3). It is further asserted that the State Police vehicles “were being operated in a reckless manner” (id.). It is asserted that Ms. Galerie was heading north on Vischer Ferry Road intending to head west on Route 146 in the Town of Clifton Park. Her vehicle was struck by a vehicle owned by James H. Murray and operated by Lucas D. Healy which was traveling west on Rt 146 (id.). It is alleged that the State was negligent in that the State Police failed to utilize their sirens when approaching the intersection in question in violation of New York State Police regulations for motor vehicle chases (Proposed Claim, ¶ 6). Thus, the first issue for determination upon any late claim motion is whether the application is timely. While Francis Galerie 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 his behalf, only on Ms. Galerie’s behalf.

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. The proposed Claim asserts a cause of action for negligence that accrued on October 14, 2008. Thus, it appears that the underlying three-year statute of limitations for negligence (CPLR 214[5]) has not yet expired 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 for the delay in timely filing and serving the Claim – that counsel was busy with other matters – is not a reasonable excuse. 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. Defendant does not argue lack of notice, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (see Affidavit in Opposition of Michael C. Rizzo, Esq.). Those factors, therefore, weigh in Movants’ favor.

The fifth factor to be considered is whether Movants have another remedy available. It appears that Movants do have at least a partial alternate remedy against the driver and owner of the vehicle that struck Ms. Galerie’s vehicle.

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 Movant 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 the proposed Claim has the appearance of merit regarding Patricia Galerie’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, Francis Galerie is mentioned in the caption of the proposed Claim, but no cause of action is asserted in the proposed Claim on his behalf.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Patricia Galerie’s favor but not Francis Galerie’s as no cause of action has been asserted on his 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 Patricia Galerie 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, Patricia Galerie shall file with the Clerk of the Court her proposed claim, in her 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 Patricia Galerie 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.


August 17, 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, Attorney’s Affidavit,
Affidavit & Proposed Claim 1

Affidavit in Opposition 2

Reply Affidavit 3