|Claimant(s):||PROGRESSIVE NORTHEASTERN INSURANCE COMPANY as subrogee of JAMES MICOZZI|
|Claimant short name:||PROGRESSIVE NORTHEASTERN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the sole properly named defendant is the State of New York.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Law Offices of Jan Meyer & Associates, P.C.
By: Richard L. Elem, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Gwendolyn Hatcher, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||October 4, 2010|
|See also (multicaptioned case)|
Progressive Northeastern Insurance Company as subrogee of James Micozzi moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In the proposed claim, it is alleged that because of defendant's negligence, James Micozzi's automobile, which was parked at Creedmoor Psychiatric Center, was damaged by falling tree limbs on August 14, 2008.
In order to determine this motion, the Act sets forth six factors which are to be weighed(2) : whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.
The first three factors - whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are often intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, on November 13, 2008, claimant sent a letter to Creedmoor Psychiatric Center (which it refers to as a "formal notice of claim"), describing the incident and demanding payment. In addition, Progressive employee Valerie Blanchard has submitted an affidavit setting forth a series of telephone calls that ensued between her and representatives of Creedmoor. It is thus clear that there was notice in this case. In view of such notice, the State's contention that it is substantially prejudiced because of the passage of time is unavailing. Overall, I find that these three factors have been met.
As to an alternate remedy, it appears undisputed that claimant's sole remedy lies in this Court. With regard to excuse, claimant cites "clerical error or . . . lack of procedural understanding of New York State claims procedures . . ." This is not satisfactory for the purposes of the Act. See, e.g., Matter of E.K. v State of New York, 235 AD2d 540 (2d Dept 1997), lv denied, 89 NY2d 815 (1997).
Finally, it must be determined whether the proposed claim appears meritorious. Claimant has submitted numerous pages of claims documentation along with photographs showing a damaged car surrounded by fallen tree branches. While claimant will ultimately be required to prove negligence on the part of defendant, I find that for the purposes of this motion, it meets the standard for merit set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." See also Sands v State of New York, 49 AD3d 444 (1st Dept 2008).
Accordingly, having reviewed the submissions and having considered the six factors(3) , IT IS ORDERED that motion no. M-78662 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file the proposed claim annexed as exhibit A to its reply papers, naming only the State of New York as defendant, in compliance with §§11 and 11-a of the Court of Claims Act.
October 4, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
3. The following were reviewed: claimant's notice of motion with affirmation in support with exhibits 1 and A through E and memorandum of law; defendant's affirmation in opposition; and claimant's affirmation in reply with Exhibit A.