New York State Court of Claims

New York State Court of Claims

HINCKLEY v. THE STATE OF NEW YORK, #2009-044-531, Claim No. None, Motion No. M-76112


Synopsis


Claimant’s motion for late claim granted in relation to injuries incurred when she fell into a hole at the edge of a roadway allegedly owned by the State.

Case Information

UID:
2009-044-531
Claimant(s):
AMANDA HINCKLEY
Claimant short name:
HINCKLEY
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-76112
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
FINKELSTEIN & PARTNERSBY: Andrew L. Spitz, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for permission to file and serve a late claim to recover for personal injuries allegedly caused by the negligence of defendant State of New York (defendant) in its maintenance of State Route 80 (Route 80) in the Town of Edmeston, Otsego County. Defendant opposes the motion. Claimant replies.

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 asserts that she was injured on July 22, 2007, when she stepped on loose gravel and fell into a hole in the roadway at the intersection of Route 80 and High Street. The applicable statute of limitations for a negligence cause of action is three years from the date of accrual (see CPLR 214 [5]). Accordingly, this motion served on January 8, 2009 is timely (see 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 asserts that she was not aware of the 90-day time limitation for filing a claim against the State, but candidly admits that such lack of knowledge is not a justifiable excuse. As claimant correctly notes, her ignorance of the requirements of the Court of Claims Act is not an adequate excuse for her delay in timely serving a notice of intention to file a claim, or for a delay in timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]). 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 contends that it did not receive notice of claimant’s accident within the statutory 90-day period and has been denied the opportunity to conduct an investigation. Defendant argues that because approximately 1½ years have elapsed between the date of the incident and this motion, the condition of the area is significantly changed, and the State will be substantially prejudiced in its defense.

Claimant was transported to the hospital by the Edmeston Volunteer Fire Department. There is no evidence that any State agency, such as the Department of Transportation, was present or investigated the accident. Further, claimant does not indicate that she or anyone on her behalf provided notice of her accident to defendant. The factor of notice therefore weighs against claimant.

Claimant provides an affidavit of Joseph J. McHugh, a professional engineer, in support of this motion. McHugh inspected the accident site and determined that there is a drop inlet at the intersection of Route 80 and High Street, in the area where claimant fell. On the date of his inspection, he noted that the drop inlet – which is used to handle drainage flow from both High Street and a 67-foot long, 12-inch diameter corrugated metal pipe which runs parallel to High Street – was covered with approximately 4 inches of hard-packed debris. He also noted that there was a one-foot drop from the pavement edge of the sidewalk to the shoulder of the roadway. McHugh indicates that the shoulder area asphalt and the sidewalk concrete have disintegrated, and opines that “[t]he area was poorly maintained at best.”

Donald Adams, an investigator for claimant’s counsel, has also provided an affidavit in support of this motion. Adams indicates that the hole in which claimant fell is located on the roadway close to the beginning of a municipal sidewalk, and measures 41 inches long and 5 inches deep. Adams also states that the water flows out of the corrugated metal pipe into an open area located several feet before the hole, and then continues to flow toward the drop inlet located on the other side of the hole.

Claimant has also provided a series of accident site photographs, apparently taken on January 10, 2008, which she indicates accurately depict the condition of the gravel and hole in the roadway as it existed on July 22, 2007, the date of her fall. She further states that the area where she fell was in the same condition when she returned to the accident site in November 2008.

The Court rejects defendant’s contention that it will suffer substantial prejudice because the condition of the accident site has changed. Claimant’s assertions that: 1) the photographs accurately depict the condition of the site at the time of her accident, and 2) the site was in the same condition as of November 2008, have not been contradicted or denied in an answering affidavit by a representative of defendant with personal knowledge of the situation.[1] Accordingly, those statements are deemed true for the purposes of this motion (see 247-59 West, LLC v State of New York, Ct Cl, Oct. 21, 2008, Milano, J., Claim No. None, Motion No.

M-75308 [UID # 2008-041-042]; Nyberg v State of New York, 154 Misc 2d 199 [1992]; see also Schweickert v State of New York, 64 AD2d 1026 [1978]; Cole v State of New York, 64 AD2d 1023 [1978]). Accordingly, it appears that defendant will have an opportunity to investigate, and therefore is not likely to suffer any substantial prejudice. Thus, the factors of opportunity to investigate and the lack of prejudice both weigh in favor of claimant.

Another factor to be considered is whether claimant has any other available remedy. Defendant asserts that claimant has apparently served a notice of claim upon the Town of Edmeston, indicating potential litigation against that party based upon the same incident, and denies that the State owns or maintains the area where claimant fell.

However, claimant has provided expert evidence that defendant is the owner of the site of her accident. In addition to his inspection of the site, Joseph McHugh apparently completed a Freedom of Information Law request and obtained records which indicate that the accident area is designated as State Highway 677 (also known as State Route 80), a four-rod turnpike.[2] McHugh also noted that the drop inlet is approximately 3 to 6 feet from the pavement edge line of Route 80, and the outlet of the corrugated metal pipe was 23 feet, 6 inches from the centerline of that road. The hole where claimant fell would thus be within the designated limits of Route 80. Based upon his review of the applicable records and his inspection of the site, McHugh opines that the State is the owner of the area where claimant fell. Assuming his conclusion is accurate, claimant has no other remedy, and the Court of Claims is the proper forum for this action against the State. This factor thus weighs in favor of claimant.

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,

supra
).

The State clearly has a nondelegable duty to maintain its roadways in a reasonably safe condition (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). However, it must be noted that the State is not an insurer of the safety of the roads and the occurrence of an accident thereon does not automatically impose liability on the State (id.). Liability will generally not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (see Harris v Village of E. Hills, 41 NY2d 446, 450 [1977]; D’Alessio v State of New York, 147 AD2d 791 [1989]; Brooks v New York State Thruway Auth., 73 AD2d 767 [1979], affd 51 NY2d 892 [1980]; Rinaldi v State of New York,

49 AD2d 361, 363 [1975]).

In her affidavit in support of this motion, claimant indicates that while she was crossing High Street to its intersection with Route 80, she “stepped on loose gravel and then into a hole in the roadway . . . [located] just before the common municipal sidewalk.” Claimant asserts that the dilapidated and decaying pavement as well as missing concrete in the area of her fall existed for a sufficient time as to provide constructive notice of the dangerous condition. When she fell into the hole, claimant landed on and fractured her left leg. She subsequently underwent surgery on that leg, and remained hospitalized for seven days.

Claimant has alleged that the incident occurred in a roadway owned and arguably negligently maintained by the State. This allegedly dangerous condition caused claimant to fall and suffer serious personal injuries. The Court finds that the cause of action has at least the initial appearance of merit.

Four of the six statutory factors, including the crucial factor of merit, weigh in favor of claimant. Claimant’s motion for permission to file and serve a late claim is hereby granted. Claimant shall file a claim containing the information required by Court of Claims Act § 11 (b). Claimant shall file said claim and serve a copy of it upon the Attorney General within thirty (30) days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.


June 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 January 15, 2009; Affirmation of Andrew L. Spitz, Esq., dated January 2, 2009; Affidavit of Amanda W. Hinckley sworn to on November 14, 2008, and attached exhibits; Affidavit of Donald F. Adams sworn to on November 14, 2008, and attached exhibits; Affidavit of Joseph J. McHugh, P.E., C.E.T., sworn to on October 31, 2008, and attached exhibit; and attached Exhibit A.

2) Affirmation in Opposition of James E. Shoemaker, Assistant Attorney General, dated March 18, 2008, and attached Exhibits A and B.


3) Reply Affirmation of Andrew L. Spitz, Esq., dated March 23, 2009.


[1]. Counsel for defendant aptly notes that the allegedly deteriorated condition of the accident site would not necessarily have remained static throughout the 1½ years since claimant’s accident. However, counsel’s statement, whether it is based upon a review of the photographs or upon a logical inference, does not appear to be based upon personal knowledge of the condition.
[2]. A four-rod turnpike is a roadway 66 feet wide, with 33 feet on each side of the centerline.