New York State Court of Claims

New York State Court of Claims

GREENE v. THE STATE OF NEW YORK, #2009-045-012, Claim No. 115328, Motion No. M-75785


Late claim motion due to wrong date of occurrence

Case Information

BARBARA GREENE, Individually and as Guardian on behalf of TAYLOR JADE GREENE and TIFFANI RAE GREENE, minors, and SCOTT GREENE
1 1.The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Law Offices of Gerry Feinberg, P.C.By: Gerry Feinberg, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 25, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Claimants’ Notice of Motion, Claimants’ Affirmation in Support with annexed Exhibits A-C and Defendant’s Affirmation in Opposition with annexed Affidavit, Claimants’ Reply Affirmation with annexed Exhibits A-C (including Affidavit) and Claimants’ Memorandum of Law. Claimants, Barbara Greene, Individually and as Guardian on Behalf of Taylor Jade Greene and Tiffani Rae Greene, Minors, and Scott Greene, have brought this motion seeking an order granting claimants leave to serve an amended claim or in the alternative an order granting leave to file a late claim pursuant to Court of Claims Act (CCA) § 10(6). Defendant, the State of New York, has opposed these applications.

Claimants originally filed a claim in this matter on June 4, 2008. The claim states that on March 11, 2008 at approximately 1:30 claimants were involved in a motor vehicle accident with a vehicle owned by defendant and operated by an employee of defendant. The claim describes the location of the accident as the westbound portion of the Long Island Expressway (Route 495) in the Town of Huntington, Suffolk County.

Court of Claims Act § 11(b) requires in pertinent part that “[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained.” These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 [2007]). “The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11(b) obligates the claimant to allege” (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]).

Claimants initially seek leave to file an amended claim in order to correct the date of occurrence listed in the original claim from March 11, 2008 to March 13, 2008. The Court also notes that the original claim provides an inadequate description of the location of the accident as well as an incomplete time of the accident. These additional deficiencies are not addressed in claimants’ amended claim. Nevertheless, while generally leave to amend a pleading shall be liberally granted, leave to amend a claim filed in the Court of Claims to cure a jurisdictional defect is impermissible (Kolnacki v State of New York, 8 NY3d 277 [2007]; Lepkowski v State of New York, 1 NY3d 201 [2003]). The failure to provide the appropriate date of occurrence together with the failure to provide an adequate description of the accident location and the incomplete time of the accident render the original claim jurisdictionally defective. Accordingly, claimants’ motion to amend the claim is denied and the Court, sua sponte, dismisses the originally filed claim in this matter.

Turning to claimants’ late claim application it is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.

Claimant does not offer any legally acceptable excuse for the delay in the filing of a sufficient claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Defendant does not deny the happening of the underlying motor vehicle accident or contend that it has been unable to sufficiently investigate the accident. Thus, after weighing all the circumstances involved in the present action, these factors are again found to be in claimants’ favor.

Claimants have not addressed the issue of whether they have an alternative remedy in this matter. Thus, this factor is found in defendant’s favor.

The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to “appear to be meritorious”: (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the Court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11, 12 [Ct Cl 1977]).

Defendant argues that the claim is not meritorious. In support of its position defendant has submitted the affidavit of Mr. Nelson Garcia, the driver of its vehicle which was involved in the subject motor vehicle accident. Mr. Garcia concedes that on March 13, 2008 he was driving a marked New York State Department of Transportation vehicle which was involved in a motor vehicle accident. He explains that at the time of the accident he was “in the course of maintenance on the Long Island Expressway” and had his hazard lights on. As a result defendant argues that Mr. Garcia’s conduct in driving the DOT vehicle should be measured against a standard of reckless disregard for the safety of others (see Riley v County of Broome, 95 NY2d 455 [2000]). Defendant avers that the claim fails to state any allegations of reckless conduct.

Claimants have submitted the affidavit of Scott Greene, the driver of claimants’ vehicle. Mr. Greene’s affidavit raises significant questions of fact concerning the happening of the accident (Bicchetti v County of Nassau, 49 AD3d 788 [2d Dept 2008]; Ryan v Town of Smithtown, 49 AD3d 853 [2d Dept 2008]). Thus, the Court finds that claimants have established, for the purposes of this motion, that their claim is meritorious.

Claimants’ proposed claim as attached as Exhibit C to their reply papers cures the deficiencies of the originally filed claim by correcting the date of occurrence and providing a more detailed description of the accident location. As it appears as though the accident occurred at 1:30 p.m. claimants are directed to add “p.m.” to the time of the incident where it appears in the proposed claim.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10(6), the Court finds that the factors favor claimants’ application. Thus, the Court hereby grants claimants’ motion to file a late claim.

Accordingly, within sixty (60) days of the date this decision and order is filed, claimants shall file and serve the proposed claim, together with a payment of the appropriate filing fee, pursuant to Court of Claims Act § § 11 and 11-a.

March 25, 2009
Hauppauge, New York

Judge of the Court of Claims