Claimant's application for permission to serve and file a late claim was granted, even though at this time claimant was unable to identify the precise location of her fall.
|Claimant(s):||CAROL D. CONTI|
|Claimant short name:||CONTI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||NICHOLAS, PEROT, SMITH, WELCH & SMITH, P.C.
BY: Michael J. Welch, Esq.,
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Michael R. O'Neill, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 21, 2010|
|See also (multicaptioned case)|
Claimant has brought this motion seeking permission to serve and file a late claim.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support by Michael J. Welch, Esq., with Exhibit (Proposed Claim), Claimant's Affidavit, with Exhibit 1,2,3
Affirmation in Opposition, with Exhibits 4
Correspondence dated April 9, 2010 from Michael R. O'Neill, Esq., Assistant Attorney General 5
In her proposed claim (Exhibit A to Item 2), claimant seeks damages for personal injuries suffered by her when she fell while walking along an uneven drop-off on the shoulder of Hatchery Road in the Town of Constantia, New York on August 17, 2007. Claimant alleges that there were no warnings, barricades, or adequate lighting of this hazardous condition prior to her fall.
As further set forth in the papers before the Court, claimant indicates that she fell "at the intersection of Hatchery Road and 53 Hatchery Road". Claimant does not contend that Hatchery Road is a State road, but rather that a DEC Fish Hatchery is located on the west side of Hatchery Road, just north of its intersection with State Route 49. Furthermore, an entity by the name of "Mother of Joy House of Prayer"(1) is located at 53 Hatchery Road, which is also on the west side of Hatchery Road, just north of the DEC Fish Hatchery.
It is apparent that claimant has duly instituted an action against the Town of Constantia in State Supreme Court arising from this incident, but claimant now seeks permission to commence an action against the State based upon the same facts and allegations. Since the incident forming the basis of this claim allegedly occurred on August 17, 2007, and since this application was filed with the Clerk of the Court of Claims on August 17, 2009, the motion is timely pursuant to § 10 (6) of the Court of Claims Act.
In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Matter of Gavigan v State of New York, 176 AD2d 1117).
With regard to excuse, claimant states that immediately following the accident, she was advised by a representative of the Town of Constantia that the area where she fell was under the control and authority of the Town, and she therefore had no reason to believe that there was any potential claim against the State of New York. She further states that it was not until after litigation had been instituted against the Town of Constantia, and during a preliminary conference in connection with that action, that defense counsel for the Town mentioned that the State, rather than the Town, had control and authority of the area where this incident occurred. However, a mistake as to the proper forum or court in which to proceed is not a sufficient excuse (Royal Insurance Co. v State of New York, 149 Misc 2d 531; Donovan v New York State Teachers' Retirement System, 87 AD2d 664) and does not constitute a reasonable excuse for failing to timely serve and file a claim. Therefore the Court finds that claimant has not set forth an acceptable excuse for her failure to timely serve and file her claim herein.
The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. In this particular matter, since claimant never considered that the State was a potential defendant until after instituting legal action against the Town of Constantia, the State never received actual notice of any potential claim, nor did it have any opportunity to investigate this incident. Nevertheless, based upon the nature of the claim, as well as the fact that a proceeding has been instituted against the Town of Constantia based upon the same facts and allegations, the Court concludes that the State would not be substantially prejudiced should it have to defend this claim.
The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show 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 (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).
Defendant contends that claimant has failed to establish a meritorious claim, since claimant has failed to identify the precise location along Hatchery Road where she fell. As defendant correctly points out, it is at this point impossible for the State to determine whether it has any responsibility for claimant's fall and resulting injuries. Nevertheless, even though at this point in time an "undeveloped factual issue exists" as to whether the Town of Constantia or the State is responsible for maintaining the property where the incident occurred (Marcus v State of New York, 172 AD2d 724, 725), the Court finds that claimant has established an appearance of merit which satisfies the minimal standards of Santana. It is anticipated that the precise location of claimant's accident (and the identification of the municipality responsible for maintenance of that location) can be determined in relatively short order through the normal discovery process.
As is evident from the discussion herein, claimant does have another available remedy, as she has instituted legal action against the Town of Constantia.
The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981) and none of the factors can require denial as a matter of law.
In this particular matter, it appears that claimant is attempting to safeguard her legal right to proceed against the State should it ultimately be determined that the State has control, responsibility and/or ownership of the location in which she fell along Hatchery Road. After reviewing the papers submitted herein, and after considering all of the factors set forth under Court of Claims Act §10 (6) in this regard, it is the opinion of this Court that claimant should be permitted to preserve this right, and should therefore be allowed to serve and file her proposed claim.
Therefore, it is
ORDERED, that Motion No. M-77099 is hereby GRANTED; and claimant is directed to file and serve a properly verified and titled claim within 45 days from the date of filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.
June 21, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
1. There is no indication that the "Mother of Joy House of Prayer" is affiliated with the State in any manner.