New York State Court of Claims

New York State Court of Claims

HUBBARD v. THE STATE OF NEW YORK, #2009-042-508, Claim No. NONE, Motion No. M-76100


This is a motion brought by claimants seeking permission to late file a claim. This is a matter wherein the proposed claim is asserted by the parents and guardians on behalf of their daughter, as well as individually. It is the defendant’s position that the proposed claimants lack standing on behalf of the claimant daughter. The court is in accord with the position of the defendant and claimants’ motion is denied insofar as they seek to late file on behalf of claimant daughter. The court also finds that the claimants individually have failed to sufficiently meet the statutory standards for the late filing of a claim on their own behalf and therefore that part of the motion is denied.

Case Information

PHILLIP E. HUBBARD and SHARON M. HUBBARD, Individually and on behalf of JAMIE L. HUBBARD, as her Parents and Guardians
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 27, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The court has considered the following papers on claimants’ motion for permission to late file a claim:
1. Notice of Motion, filed January 14, 2009
2. Affidavit of James G. DiStefano, Esq., sworn to January 10, 2009
3. Affidavit of Sharon M. Hubbard, sworn to January 10, 2009
4. Affidavit of Phillip E. Hubbard, Jr., sworn to January 10, 2009
5. Exhibits annexed to moving papers
6. Opposition affirmation of Joel L. Marmelstein, Esq., filed March 2, 2009
7. Exhibits A - B, annexed to the opposition affirmation

This matter comes before the court on a motion by claimants, Phillip E. Hubbard, Jr. and Sharon M. Hubbard, individually and on behalf of Jamie L. Hubbard, as her parents and guardians, for permission to late file a claim. The Notice of Motion was filed on January 14, 2009. The claim arose on January 15, 2008. At the time the claim arose, Jamie L. Hubbard was a 23-year-old college graduate.

The circumstances of this case are tragic. Jamie Hubbard sustained catastrophic injuries in a motor vehicle accident occurring on a county road in Madison County on January 15, 2008. Claimants have appended the police accident report to the moving papers. According to the report, the vehicle operated by Jamie Hubbard lost traction as a result of black ice and slid into the oncoming lane of traffic, where the defendant’s vehicle, operated by Joseph Sadlowski, was unable to avoid collision with the Hubbard vehicle.

Jamie Hubbard’s mother’s affidavit states that Jamie was comatose until April 22, 2008 following the accident and now is both physically and mentally incapacitated. It is alleged that Jamie is “totally disabled, non verbal, totally confined to her bed except for required visits to the doctors and therapy.” She has returned to reside in her parents’ home, where they are caring for her.

The defendant State of New York opposes the application for permission to late file.


Jamie L. Hubbard has not asserted any claim on her own behalf, rather, the proposed claim is made on her behalf by her parents, in what they assert is their status as her parents and guardians. It is the position of the Attorney General that these proposed claimants lack standing. This court is in accord with the position of the Attorney General.

Jamie L. Hubbard is an adult - she was 23 years old at the time of the accident and 24 years old at the time of the filing of the motion. The moving papers indicate that her parents are currently seeking to be appointed Jamie’s guardians by another court. Nevertheless, at this time they have no standing to seek relief on behalf of Jamie L. Hubbard (see DeStefano v State of New York, UID No. 2001-017-615, Claim No. None, Motion No. M-60941, March 21, 2001, O’Rourke, J.).

Therefore, this motion is denied without prejudice insofar as Phillip E. Hubbard, Jr. and Sharon M. Hubbard seek permission to late file a claim on behalf of Jamie L. Hubbard. While the court need not address the issue of the legal disability, if any, of Jamie L. Hubbard, the defendant correctly points out that, given the severity of her injuries, facts may be such that claims of Jamie L. Hubbard have been and continue to be tolled by her medical condition.

The only reference to the claims made by Phillip E. Hubbard, Jr. and Sharon M. Hubbard, individually, is contained in paragraph “Sixth” of the proposed claim, which states that “her [Jamie L. Hubbard] parents, Phillip E. Hubbard, Jr. and Sharon M. Hubbard, sustained economic losses.”
Court of Claims Act § 10 (6) provides, in relevant part, that:
[i]n determining whether to permit the [late] filing of a claim . . ., the court shall 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 claimant has any other available remedy.

The presence or absence of any one factor is not dispositive in the court’s consideration of a late claim motion. (See Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979; Rice v State of New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, October 18, 2006, Sise, P.J.). Additionally, the court is afforded broad discretion in its determination and consideration of the statutory factors. Matter of Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, March 10, 2004, Sise, J.

As noted previously, the accident in issue occurred on January 15, 2008. According to the supporting affidavits of Phillip Hubbard and Sharon Hubbard, their daughter was continuously hospitalized at various centers until her return to their house approximately nine months following the accident. However, as defendant notes, Jamie Hubbard was sufficiently stabilized to be moved to a rehabilitation center one month following the accident. Thus, there remained two months in which these claimants could have taken appropriate steps to timely preserve and pursue their legal rights and options.

While weighing their legal options and consulting legal counsel at a time of such personal tragedy and devastation might, as a practical matter, be unlikely, nevertheless the court finds that under applicable law, this factor does not weigh in claimants’ favor.


In its opposition to this motion, “[t]he defendant concedes it had sufficient notice and opportunity to investigate the events surrounding the accident and will not be prejudiced by the commencement of the Claim at this time.”

In light of the foregoing, these three factors favor the claimants and present no obstacle to the claimants’ requested relief.


This factor is often considered the most decisive, since “it would be a futile gesture to permit a claimant to file a claim which is legally defective and thus subject it to immediate dismissal” (Terrell v Green Haven Correctional Facility, Ct Cl, June 14, 1977, Rossetti, J.; see Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 10).

The defendant contends that the proposed claim fails to demonstrate its merit because it fails to meet the statutory pleading thresholds. Court of Claims Act § 11 (b) provides, in relevant part, that the following must be contained within the claim:
[t]he claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed.
Defendant argues that the proposed claim is defective inasmuch as Phillip Hubbard and Sharon Hubbard fail to state the precise nature of their individual claims, the specific amount of their damages, and how the state was negligent.

Turning to defendant’s first point, the claim merely states that they sustained “economic losses”. They do not contend that they sustained personal injury and the claim fails to allege the nature of any claim for economic damages they would sustain through the injury of an emancipated adult child. Defendant’s objection is well taken and the court is in accord with defendant’s position.

As for the specific amount of their claims, it appears to be defendant’s position that since these claimants were not involved in the accident, their claim is more in the nature of property damage, rather than a claim arising out of personal injury, and thus, under the provisions of Court of Claims Act § 11 (b), claimants are obligated to state an exact amount of damages. While this argument may be technically correct, the court is loathe to adopt this reasoning under facts as sympathetic as set forth herein. The court does not find it necessary to address this point, as other rulings are dispositive.

Defendant’s third argument is that the claim fails to set forth the precise nature of the defendant’s alleged negligence, as it only states that the state vehicle involved in the accident “was negligently and imprudently being operated” at the time of the accident. As noted previously, claimants themselves appended the police accident report to their moving papers. It appears undisputed by the parties that Jamie Hubbard’s vehicle slid into the defendant’s driver’s lane of traffic and collided with the defendant’s vehicle in its own lane of traffic. In support of this motion, there is no showing of any negligence on the part of the defendant driver. Furthermore, as for highway conditions, the State alleges that Madison County was responsible for the road conditions, not the State of New York. Claimants’ attorney concedes that the accident occurred on County owned and maintained roads.

As one court has noted, in a motion for leave to file a late claim, for the claim to be deemed meritorious, “the record as a whole must give reasonable cause to believe that a valid cause of action exists” (Sands v State of New York, 49 AD3d 444). These claimants have failed to make the threshold showing of a meritorious claim. This factor does not favor the claimants.


It is undisputed that the claimants have an alternative venue in which to seek relief, as they have already commenced an action in New York State Supreme Court, naming the State’s driver and the County of Madison as defendants.

This factor does not favor the claimants.

Having weighed all of the statutory factors, the court finds that the claimants Phillip and Sharon Hubbard have failed to meet the statutory standard sufficiently to warrant allowing the late filing of a claim on their own behalf (see Jerrett v State of New York, 166 AD2d 907).

Accordingly, it is:

ORDERED that the motion is denied without prejudice insofar as Phillip E. Hubbard, Jr. and Sharon M. Hubbard seek permission to late file a claim on behalf of Jamie L. Hubbard; and it is further

ORDERED that the motion of Phillip E. Hubbard, Jr. and Sharon M. Hubbard, insofar as they each seek permission to file a late claim on their own behalf individually, is denied.

May 27, 2009
Utica, New York

Judge of the Court of Claims