Claimant moves for permission to file a late claim to recover for property
damage paid to its subrogor, Suzanne L. Edsall (the Insured). The Insured was
operating her vehicle on State Route 54 in a southerly direction when she was
involved in a collision with a vehicle owned by defendant State of New York
(defendant) and operated by a State Trooper. Defendant opposes the
A motion seeking permission to file and serve a late claim must be brought
within the statute of limitations period attributable to the underlying cause of
action (Court of Claims Act
§ 10 ). The applicable statute of limitations for negligence is three
years from the date of accrual (see CPLR 214 ). Claimant’s
cause of action accrued on January 6, 2008, the date of the accident.
Accordingly, this motion mailed on October 15, 2008 is timely (Matter of
Unigard Ins. Group v State of New York, 286 AD2d 58 ).
Having determined that the motion is timely, the Court turns to a consideration
of the merits of the motion itself. The factors that the Court must consider
under Court of Claims Act
§ 10 (6) in determining a motion to permit a late filing of a claim are
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or
serve upon the attorney general a notice of intention resulted in substantial
prejudice to defendant; and
6) claimant has any other available remedy.
Although claimant submitted a subrogation demand to Cool Risk Management
Services (Cool Risk), the claim administrator for defendant’s fleet of
cars, claimant acknowledges that it failed to timely serve a notice of intention
or timely file and serve a claim in this matter, without submitting any excuse
for that lapse. Accordingly, this factor weighs against claimant.
The three factors of notice of the essential facts, an opportunity to
investigate and the lack of substantial prejudice are frequently analyzed
together since they involve similar considerations. Defendant argues that
claimant’s delay has effectively denied the State notice and an
opportunity to investigate the accident, and as a result, it will suffer
substantial prejudice in its defense of this matter.
Defendant’s contention that it did not have notice or an opportunity to
investigate is completely without merit. While operating her vehicle on State
Route 54, the Insured collided with a State Police vehicle operated by State
Trooper Pomeroy (the Trooper). Sergeant
prepared a Police Accident Report
(the Police Report) which contains both a description and diagram of the
accident, and also indicates that photographs had been taken. Further,
claimant served Cool Risk with a subrogation demand on April 1, 2008, within the
90-day statutory period of Court of Claims Act § 10 (3). Cool Risk
acknowledged receipt of the demand, and indicated that it was conducting an
The mere filing of a State Police Report does not always constitute notice to
the State (see e.g. Rizzo v State of New York, 2 Misc 3d 829 ).
However, in this instance, a State Police employee was actually involved in the
collision, and defendant therefore must be deemed to have acquired knowledge of
the essential facts constituting the underlying incident (see Wolf v State of
New York, 140 AD2d 692 ; see also Matter of Continental Ins. Co. v
City of Rye, 257 AD2d 573 ; Matter of McAdams v Police Dept. of
Town of Clarkstown, 184 AD2d 847 ). Moreover, both the State Police
and Cool Risk conducted investigations into the accident (see Adirondack Ins.
Exch. v State of New York, Ct Cl, Nov. 28, 2007, Lopez-Summa, J., Claim No.
None, Motion No. M-73945 [UID # 2007-045-027]). The two factors of notice and
an opportunity to investigation therefore weigh in favor of claimant.
Defendant’s argument that it will suffer substantial prejudice in its
defense of this matter is also without merit. The State’s argument is
unclear. However, it appears that defendant may be contending that claimant
– by not timely serving a notice of intention or serving and filing a
claim, but instead serving Cool Risk with a subrogation demand – has
misled the State into believing that a claim would not be filed.
Defendant’s contention is unreasonable, and the Court cannot discern any
possible prejudice to defendant. Thus, this factor weighs in favor of claimant.
Another factor to be considered is whether claimant has any other available
Claimant alleges that during the
course of the Trooper’s employment with defendant, he operated his patrol
car in a reckless or negligent manner, thereby colliding with and causing
extensive damage to a vehicle insured by claimant. It appears that the only
remedy available to claimant is an action in the Court of Claims. Accordingly,
this factor also weighs in favor of claimant.
The issue of whether the proposed claim appears
is the most crucial component in
determining a motion under Court of Claims Act § 10 (6), since it
would be futile to permit a meritless claim to proceed (Matter of Santana v
New York State Thruway Auth.,
92 Misc 2d 1, 10 ). In order to establish a meritorious claim, a claimant
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
claim exists (id. at 11). There is a heavier burden on a party moving
for permission to file a late claim than on a claimant who has complied with the
provisions of the Court of Claims Act (see id. at 11-12; see also
Nyberg v State of New York,
154 Misc 2d 199, 202-203 ).
It is well settled that “a police officer’s conduct in pursuing a
suspected lawbreaker may not form the basis of civil liability to an injured
bystander unless the officer acted in reckless disregard for the safety of
others” (Saarinen v Kerr,
84 NY2d 494, 501 ; see also
Vehicle and Traffic Law § 1104). Because there is some indication that the
Trooper had activated his emergency lights prior to initiating a U-turn –
in order to pursue a speeding motorist in the northbound (opposite) lane –
his conduct may ultimately be evaluated under the standard of recklessness
rather than ordinary negligence (see e.g. Saarinen v Kerr, supra
In its proposed claim, claimant alleges that the Trooper “made a reckless,
negligent and/or careless and unsafe lane change and attempted to make a
[U]-turn in front of [the Insured] causing a
Claimant has also provided
an affidavit from the Insured, wherein she describes the accident in more
detail, stating that she believed the Trooper had directed her to pull over, but
“then, without any warning whatever, [he] attempted to make a U-turn right
in front of [her] car in . . . an attempt to travel northbound on State Route
The Court finds that the evidence
supports an inference that the Trooper’s conduct may have been reckless,
and that the claim is not patently groundless – particularly in light of
defendant’s failure to comment on whether the claim appears meritorious
n 3, supra
). Accordingly, the factor of merit also weighs in
The Court finds that five of the six factors, including the most crucial factor
of merit, weigh in claimant’s favor. Claimant’s motion for
permission to late file a claim is granted. Claimant is directed to serve the
proposed claim upon the Attorney General, and to file said claim with proof of
service with the Clerk of the Court of Claims, all within 30 days from the date
of filing of this Decision and Order. The service and filing of the claim shall
be performed pursuant to the strict requirements of the Court of Claims
1) Notice of Motion filed on October 20, 2008; Affidavit of Suzanne L. Edsall,
sworn to on September 4, 2008, and attached exhibit; Affidavit of Bob Maahs,
sworn to on September 16, 2008, and attached exhibits; Affirmation of Eric D.
Handelman, Esq., dated October 15, 2008, and attached exhibits.
2) Affirmation in Opposition of Roberto Barbosa, AAG, dated November 7, 2008.