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 ). “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 ).
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 ; Lepkowski v State of New York, 1 NY3d 201 ). 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 ). 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 ). 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
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
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 ). Defendant avers that the claim fails to state any allegations of
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
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.