Movant's application for leave to serve and file a late claim asserting a cause of action for pain and suffering was denied.
|Claimant(s):||ANA ORTIZ as the Proposed Administratrix of the Estate of SANTOS ORTIZ, DECEASED|
|Claimant short name:||ORTIZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||JEFFREY M. BLOOM, ESQ.|
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Vincent Cascio, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 16, 2010|
|See also (multicaptioned case)|
The following papers numbered 1-3 were read and considered by the Court on movant's application for leave to serve and file a late claim and oral argument was heard on March 15, 2010:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Affirmation in Opposition........................................................................................2
Reply Affirmation and Exhibits................................................................................3
The proposed claim (Movant's Ex. D) alleges that on July 7, 2009, Santos Ortiz was killed when he lost control of the vehicle he was driving on Route 87 in Rockland County. The vehicle went through the guiderail at the ramp of exit 15 and hit the highway below before plunging into the Ramapo River. The claimed negligence is defendant's failure to place a proper guiderail or other protective barrier along Route 87 to protect vehicles from veering off the exit 15 overpass.
A notice of intention was timely served upon defendant alleging a claim for pain and suffering and wrongful death (Movant's Ex. B); this notice of intention, however, was rejected by defendant due to an improper verification (Movant's Ex. C). Thereafter, a second notice of intention was served on October 23, 2009, within three months of the appointment of an administratrix. That notice of intention was timely in commencing the wrongful death action,(1) but was untimely as to a cause of action for pain and suffering. Accordingly, movant seeks leave to serve and file a late claim asserting a cause of action for pain and suffering.(2)
The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979).
The Court has considered the above six factors. Movant's purported excuse for her failure to timely serve a properly verified notice of intention is essentially law office failure, which is not a valid excuse (see Nyberg v State of New York, 154 Misc 2d 199 [possible law office failure is not a valid excuse for the failure to timely commence an action]). Nonetheless, this is but one factor to be considered.
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199, supra; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891). Here, the proposed claim is not adequately detailed with specific allegations of defendant's negligence purported to have caused or contributed to the accident (see Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413 [late claim application denied where movant failed to adequately set forth facts demonstrating claim had appearance of merit]).
As defense counsel correctly noted, the proposed claim fails to specify why the barriers along Route 87 were inadequate and there are no allegations of any other contributing factors such as an improper ramping grade, signage, or speed limit postings in the area. Movant supplemented her application with reply papers which included a police report and an autopsy report (Reply, Exs. A, C). However, these exhibits alone are insufficient to establish an appearance of merit without the aid of an expert to show how any particular alleged defect either caused or contributed to the accident and some medical evidence establishing that Mr. Ortiz sustained pain and suffering before his death. Indeed, movant's counsel conceded at oral argument that the specific cause of the accident was not known and that it would be necessary to obtain the opinion of an expert to establish what caused the decedent to lose control of the vehicle.
The accident report indicates that Mr. Ortiz was deceased when the police arrived at the scene. Counsel conceded that he could not present any evidence that the decedent had sustained any pain and suffering or whether he was killed instantly. In the absence of any expert proof, counsel's own unsubstantiated assertions and speculations are insufficient to establish the appearance of merit and the claim for pain and suffering (see Mosberg v Elahi, 176 AD2d 710, affd 80 NY2d 941 [in opposition to a motion to dismiss for failure to prosecute, expert medical evidence was necessary to establish a meritorious cause of action regarding matters not within the knowledge and ordinary experience of lay persons]).
In sum, the Court has considered all of the factors under Court of Claims Act §10(6) and finds that, most significantly, movant failed to establish the appearance of merit of her proposed claim and that this factor weighed heavily in the Court's determination of whether to grant her application (see Langner v State of New York, 65 AD3d 780 [late claim application denied even though defendant admitted no prejudice where conclusory allegations were not enough to show a meritorious cause of action]; Matter of Brown v State of New York, 6 AD3d 756 [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]). Upon careful consideration, the Court denies that branch of her motion which seeks to file a late claim for pain and suffering (see Qing Liu v City Univ. of N.Y., 262 AD2d 473; Matter of Gallagher v State of New York, 236 AD2d 400).
March 16, 2010
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims
1. While movant has timely served a notice of intention regarding her wrongful death claim, she must further comply with all the relevant service and filing provisions of the Court of Claims Act in serving and filing her claim.
2. There is no authority to grant that part of movant's application which seeks to deem the defective notice of intention proper. Accordingly, movant's motion is denied as to that remedy.