New York State Court of Claims

New York State Court of Claims

SHELTON v. THE STATE OF NEW YORK, #2009-044-513, Claim No. None, Motion No. M-75809


Synopsis


Court grants motion for permission to late file claim alleging injuries caused by negligent maintenance of guiderail; denies permission for causes of action alleging negligent design and construction of guiderail due to absence of expert affidavit.

Case Information

UID:
2009-044-513
Claimant(s):
KATHLEEN I. SHELTON
Claimant short name:
SHELTON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1. The Court has, sua sponte, amended the caption to reflect the State of New York as the sole proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-75809
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
ANDREW H. WOOD., ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 2, 2009
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for permission to file a late claim to recover for personal injuries allegedly received when her motor scooter collided with a guide rail on State Route 10 in Delaware County. Defendant State of New York (defendant) opposes the motion.

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 [6]). Claimant alleges that defendant negligently designed, constructed and maintained the guide rail. The applicable statute of limitations is therefore three years from the date of accrual (see CPLR 214 [5]). Claimant’s cause of action accrued on June 20, 2008, the date of her accident. Accordingly, this motion personally served on November 7, 2008 is timely (Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]).

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 whether:

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 claim;
4) the claim appears to be meritorious;

5) 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 defendant; and

6) claimant has any other available remedy.

Claimant contends that she was hospitalized from June 20, 2008, the date of the accident, through July 21, 2008, and thereafter from September 11, 2008 through September 18, 2008, when she underwent further surgery. Claimant also apparently took prescription pain medication which allegedly “left [her] in a lethargic condition, rendering [her] unable to do the simplest tasks on [her] own.”[2] Claimant further states that she received home health care from July 2008 through October 2008, which included physical therapy sessions, and that she was unable to return to work until October 1, 2008, after the expiration of the 90-day period in which to file and serve a claim. Claimant asserts that because of both the physical injuries and emotional trauma which she suffered, she was incapable of making any decisions other than those concerning her immediate health needs.

Generally, in order to establish that a claimant was sufficiently incapacitated so as to excuse his or her compliance with the applicable time limitations, the Court must be provided with a physician’s affidavit or hospital records (Goldstein v State of New York, 75 AD2d 613 [1980]). Claimant has not submitted any medical evidence concerning the extent of her physical injuries, or the effects of either the surgeries or medication, nor has she sufficiently explained why she was unable to meet with counsel during the time she was recuperating at home. Accordingly, claimant has not provided an adequate excuse for the delay in filing a claim, and this factor therefore weighs against her.

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. Claimant asserts that because a police accident report (the Report) was prepared,[3] and the Department of Transportation (DOT) replaced the damaged section of the guide rail, defendant had actual notice of the defective condition as well as an opportunity to investigate. The mere filing of a police accident report does not necessarily constitute notice to the State (see e.g. Rizzo v State of New York, 2 Misc 3d 829 [2003]), particularly in this case where the investigating agency was not the State agency involved in the accident (cf. Wolf v State of New York, 140 AD2d 692 [1988]). Further, despite claimant’s allegations, the Report does not indicate that any public property was damaged, and there is no indication that the reason the guide rail was replaced was due to this accident. The factor of notice thus also weighs against claimant.

Even though the State did not have actual notice of the incident, defendant candidly concedes that based upon this motion, it now has an opportunity to investigate the underlying facts. Further, defendant does not assert, and the Court does not discern, any substantial prejudice in defending this potential claim. Thus, the two factors of opportunity to investigate and lack of substantial prejudice weigh in favor of claimant.

Another factor to be considered is whether claimant has any other available remedy. Defendant contends that claimant may have an action against the owner of the motor scooter or an instructor. However, claimant denies any negligence on the part of the scooter’s owner, and there is no indication that she is contemplating any other action. Because claimant alleges that she was injured as a result of the negligent design, maintenance and/or control of the guide rail which belongs solely to defendant, the Court of Claims appears to be the only forum available to resolve her dispute. This factor therefore also weighs in claimant’s favor.

The issue of whether the proposed claim appears meritorious 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 [1977]). 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 [1992]).

“It is well settled that in order to set forth a prima facie case of negligence, the [claimant] must demonstrate: (1) a duty owed by the defendant to the [claimant]; (2) a breach of that duty; and (3) an injury suffered by the [claimant] which was proximately caused by the breach” (Murray v New York City Hous. Auth., 269 AD2d 288, 289 [2000]).

Claimant contends that DOT’s “Corrugated Beam Guide Railing (For Maintenance Use Only)” (Specification Sheet M606-6) defines the standard of care by requiring that no guide rail post extend more than 10 millimeters above the guide rail. Claimant alleges that if the guide rail post was not three inches above the guide rail, she would not have suffered such extensive injuries.

Conversely, defendant argues that the specification sheet is merely a guideline for the construction and repair of guide rails, and does not establish any duty to ensure that every guide rail post be no more than 10 millimeters above the guide rail. Defendant also contends that claimant’s failure to submit expert opinion evidence to establish a causal connection between the State’s alleged negligence and her injuries is fatal to this motion.

Clearly, the State is under a duty to design, construct and maintain its roadways, as well as roadside barriers such as guide rail in a reasonably safe condition (see McDonald v State of New York, 307 AD2d 687 [2003]; Lattanzi v State of New York, 74 AD2d 378 [1980], affd on op below 53 NY2d 1045 [1981]; see generally Bottalico v State of New York, 59 NY2d 302 [1983]). However, it is well settled that in order to establish that a highway was negligently designed or constructed, a potential claimant seeking permission to file a late claim must provide some type of expert opinion to that effect (see e.g. Nyberg v State of New York, supra). Claimant’s failure to offer any expert evidence on these issues is fatal to the proposed causes of action for negligent design and construction. Accordingly, claimant has failed to establish an appearance of merit with respect to these two causes of action.

Claimant has also alleged that the guide rail was negligently maintained, to wit, that the guide rail post significantly extended above the top of the guide rail, in apparent violation of Specification Sheet M606-6. Claimant’s allegation that the guide rail post was at least three inches above the top of the guide rail is not contradicted at this point, and must be deemed to be true for the purposes of this application (see e.g. Aronson v State of New York, Ct Cl, Dec. 27, 2002, Sise, J., Claim No. None, Motion No. M-65339 [UID # 2002-028-075]). Further, Specification Sheet M606-6 appears to indicate that there should be no more than 10 millimeters between the top of the guide rail and the top of the guide rail post. Although expert testimony at trial may be necessary to establish that Specification Sheet M606-6 is applicable to the highway and guide rail at issue (see Preston v State of New York, 6 AD3d 835 [2004], lv denied 3 NY3d 601 [2004]), claimant has submitted sufficient evidence from which the Court may infer a breach of defendant’s duty. Moreover, expert evidence is not necessary in order to establish that the allegedly defective condition (an additional three inches of exposed guide rail post) might have been a substantial factor in causing claimant’s injuries.[4] Accordingly, the proposed cause of action for negligent maintenance has the appearance of merit.

The Court finds that three of the six factors, including the most crucial factor of merit, weigh against claimant with respect to the proposed causes of action for negligent design and negligent construction of the guide rail. However, four of the six factors, including the most crucial factor of merit weigh in favor of claimant on her proposed cause of action for negligent maintenance. Accordingly, claimant’s motion for permission to late file a claim with respect to negligent maintenance is granted. Claimant is directed to serve her proposed claim, less that portion alleging the proposed causes of action for negligent design and construction, 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 Act.

Claimant’s motion for permission to late file a claim with respect to negligent design and construction of the guide rail is denied, without prejudice.




March 2, 2009
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:
1) Notice of Motion filed on November 10, 2008; Affirmation of Andrew H. Wood, Esq., dated November 6, 2008, and attached Exhibits A through C; Affidavit of Kathleen I. Shelton sworn to on October 31, 2008, and attached Exhibits A through C; proposed Claim, and attached Exhibits A and B.

2) Affirmation in Opposition of Carol A. Cocchiola, Assistant Attorney General, dated December 3, 2008.

3) Claimant’s Reply Memorandum of Law dated December 18, 2008, and attached Exhibit A.


[2]. Affidavit of Kathleen I. Shelton, sworn to October 31, 2008, in Support of Motion, ¶ 9).
[3]. The local Sheriff’s Department apparently responded to the accident and completed the Report (Department of Motor Vehicles MV-104A) (Claimant’s Notice of Motion to File a Late Claim, Exhibit A).
[4]. It should be noted that in order to recover damages (if liability is shown), it will be necessary for claimant to establish the precise amount of damages allocable to the “aggravation” of her injuries (i.e., the difference between the injuries she actually received and the injuries she would have received if the guide rail post did not extended more than 10 millimeters above the guide rail [see generally Gutelle v City of New York, 55 NY2d 794 (1981)]), since the allegedly defective condition did not cause the accident itself.