Claim No. 114990 is DISMISSED as untimely. Claimants are granted leave to file a late claim.
|Claimant(s):||NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY as Subrogee of ROSS E. KOSBOB and MARJORIE A. KOSBOB, and ROSS E. KOSBOB and MARJORIE A. KOSBOB|
|Claimant short name:||NY Central|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||Law Office of Keith D. Miller, Esquire
By: Keith D. Miller, Esquire
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Bonnie Gail Levy, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 17, 2010|
|See also (multicaptioned case)|
Claimants move to strike the State's fifth affirmative defense or for "leave to file late Notice." The State opposes Claimants' motion and moves for dismissal of the claim for failure to timely serve a notice of intention or file and serve a claim, failure to comply with Court of Claims Act § 11 (b) and failure to state a viable cause of action.
It is alleged that an employee of Defendant, New York State Department of Transportation (hereinafter DOT), negligently aimed a snowblower chute causing significant snow and ice to break and blow into the windows of a nearby house owned by Ross and Marjorie Kosbob on February 11, 2007, at approximately 11:00 p.m. The snow and ice allegedly caused significant damage inside the house.
The following day, a report was completed by Charles Reidman, a Civil Engineer II, with DOT, setting forth the location, date, and time of the occurrence. Attached to the report were statements by some of the DOT workers involved. On the second page, Mr. Reidman wrote, "It was NYSDOT's fault, pay the claim."
According to Claimants' attorney, DOT provided claim forms to either the Kosbobs or the insurance company. On April 24, 2007, the completed forms, along with documentation of the damages, a cover letter, and a document entitled "Notice of Claim" were mailed, return receipt requested, to the New York State DOT. The Notice of Claim listed New York Central as the Claimant with a brief description of the incident, the date, time, and place of the incident and the amount of damages.
On May 1, 2007, a senior attorney, Keith Martin, wrote to the Kosbobs. The letter referred to an earlier telephone conversation on March 9, 2007, with Mrs. Kosbob and explained that the damage amount exceeded the small claims administrative review, and that the Kosbobs should have New York Central, as subrogee, file a "Notice of Claim" pursuant to the Court of Claims Act. It further acknowledged receipt of the "Notice of Claim" and documentation previously sent by New York Central and said that the information would be forwarded to the New York State Attorney General's Office.
Claimants' attorney personally served a Notice of Intent to File Claim upon Assistant Attorney General Roger Williams on May 16, 2007. A "Summons and Complaint"(1) were filed on March 18, 2008, in the Court of Claims Clerk's Office and served upon Defendant on March 19, 2008.
The Attorney General's Office filed a Verified Answer on April 23, 2008, which contains the following affirmative defenses:
AS AND FOR A THIRD AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
7. The claim fails to state a cause of action.
AS AND FOR A FOURTH AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
8. The claim is jurisdictionally defective in that it is unverified by the
Claimant(s), and fails to set forth the actual location at which the purported injury to
property or damages took place, or the manner in which said damages came about,
much less the schedule of the claimed losses or damages, and the total thereof, all
of which is required by the Court of Claims Act and Rules (22 NYCRR Part 206).
AS AND FOR A FIFTH AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
9. The claim is jurisdictionally defective in that the purported Notice of
Intention to File Claim was served in excess of ninety (90) days from the alleged date
of the occurrence giving rise to said Claim or damages, and that the same failed to
state a cause of action as against any state agency or employee, as required by the
Court of Claims Act.
AS AND FOR A SIXTH AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
10. That at the time and place, if any, alleged in the Claim, the New York
State Department of Transportation was actually engaged in snow and ice control
operation s [sic] and its employee(s) operated said equipment while engaged in work
on a highway, and by reason thereof said operations and work are qualifiedly privileged
and immune from suit.
Initially, the Court will address Claimants' motion to dismiss Defendant's fifth affirmative defense and Defendant's cross-motion to dismiss the claim as they are interrelated.
The Defendant's first ground for dismissal is based upon its fifth affirmative defense, asserting Claimants failed to timely serve a claim or a Notice of Intention to file a claim, pursuant to Court of Claims Act § 10 (3). That section requires a claim to be filed with the Clerk of the Court and served upon the Assistant Attorney General within 90 days of the accrual of the action unless a Notice of Intention is served upon the Assistant Attorney General within that same time period. If a Notice of Intention is so served, Claimant has two years from the date of accrual to file and serve a claim. These requirements must be strictly construed as they are jurisdictional in nature (Finnerty v New York State Thruway Auth., 75 NY2d 721).
The 90th day after the incident, May 12, 2007, was a Saturday, therefore the last day for timely service was May 14, 2007.(2) Claimants acknowledge that no notice of intention or claim was served within 90 days from the date of accrual, May 14, 2007, but argue that the State should be estopped from asserting the defense of untimeliness because of its actions in leading Claimants to believe this matter would be handled administratively. Although the State may have initially led Claimants to believe the State would administratively pay for the damages, on March 9, 2007, Attorney Keith D. Martin told Mrs. Kosbob that the damages sought exceeded the amount permitted by the small claim procedures and directed her to file a "Notice of Claim . . . pursuant to the Court of Claims Act." This was confirmed by letter dated May 1, 2007, before the expiration of the 90-day time frame. By including this directive, the DOT's actions clearly do not rise to the level required for estoppel (see Wattley v State of New York, 146 Misc 2d 968; McClurg v State of New York, 204 AD2d 999, [4th Dept 1994]; Tooks v State of New York, 40 AD3d 1347 [3d Dept 2007]; Rivera v State of New York, 5 AD3d 881 [3d Dept 2004]; but see Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003] [estoppel not applicable to lack of subject matter jurisdiction]).
Accordingly, since the Notice of Intent to File Claim was served two days after May 14, 2007, Defendant's defense is clearly meritorious as the service of the Notice of Intent to File Claim and the filing and service of the "summons & complaint" are untimely. The Court denies Claimants' motion to dismiss the defense and grants Defendant's motion to dismiss the claim.(3)
The Court will now consider Claimants' late claim request. Court of Claims Act § 10 (6) allows a Claimant who failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act § 10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10 ). The motion is timely (Court of Claims Act § 10 ; CPLR § 214 ).
As part of this application, a proposed claim containing all of the information required by Court of Claims Act § 11 must be included. The State points out that the Movants' motion papers failed to include a proposed claim as required by Court of Claims Act § 10 (6). Movants request in their reply papers that the Court consider the Notice of Intent to File Claim dated May 15, 2007, and attached to the Defendant's moving papers as Exhibit 1 as the proposed claim. This Court will consider that document as the proposed claim (cf., Peradze v State of New York, Ct Cl, Collins, J., February 16, 2005, Cl. No. 107088, Motion Nos. M-69272, CM-69385, [UID #2005-015-010]).
Court of Claims Act § 10 (6) requires that the Court, in deciding the substance of an application for permission to file a late claim, give consideration to six factors: (1) whether there is a reasonable excuse for the delay in filing the claim; (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 notice of intention resulted in substantial prejudice to the State; (6) whether there is any other available remedy, and any other relevant factors. There is no one factor that is determinative, rather it is a balancing of all of the factors that may warrant granting the application (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965).
The first factor is whether the delay in filing the claim is excusable. Claimants argue that the delay was excusable because the DOT legal staff's letter of May 1, 2007 was misleading. As explained above, the Court will not estop the Defendant from asserting the untimeliness of the filing based upon the DOT's May 1, 2007 letter. On-going negotiations for settlement have been held to be an insufficient excuse for untimely filing (Grange v State of New York, Ct Cl, Midey, J., May 23, 2006, Cl. No. None, Motion No. M-71041, [UID #2006-009-030]; State Farm Mutual Automobile Insurance Company a/s/o Thomson v State of New York, Ct Cl, Lack, J., June 19, 2006, Cl. No. None, Motion No. M-70977, [UID #2006-033-187]; Allstate Insurance Company v State of New York, Ct Cl, Lack, J., December 28, 2006, Cl. No. None, Motion No. M-72273, [UID #2006-033-219]). This factor weighs against Movants.
The following three factors: whether the State had notice of the essential facts constituting the claim, whether the State had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file and serve a timely claim or serve a notice of intention resulted in substantial prejudice to the State are related and will be considered together. An incident report and statements from DOT workers were completed the day after the incident. These documents provide the Kosbobs' name and address; witness names, addresses and phone numbers, an explanation of what occurred, and some information about the damage which resulted.
In April 2007, still within the 90 days of the incident, Claimants provided DOT with a basic claim form and numerous documents, including photographs, that enumerate the damages. As of May 1, 2007, the DOT legal department had the packet of documents sent from Claimants. These factors weigh in favor of granting late claim relief.
The next factor, by far the most critical, is whether the proposed claim has the appearance of merit. Thus, unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199). Yet the burden is minimal, as generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11).
Claimants rely upon the statement of the DOT engineer in the initial incident report that it was DOT's fault and to pay the claim in support of the claim's merit. The Defendant argues that this is insufficient to support a finding that the claim appears meritorious and that this is a case subject to § 1103 of the Vehicle and Traffic Law which exempts persons and operators of equipment engaged in work on a highway from liability unless their conduct is shown to be in reckless disregard for the safety of others (see Riley v County of Broome, 95 NY2d 455; and the comparison case, Wilson v State of New York, 95 NY2d 455). At this juncture, the Court cannot determine whether or not the operation of this equipment would fall under § 1103. Given the light burden on a movant in late claim applications, the Court finds the claim appears to have merit (see Delano v New York State Thruway Auth., Ct Cl, Scuccimara, J., February 18, 2009, Cl. No. None, Motion No. M-76060, [UID #2009-030-508]).
The final factor weighs in Claimants' favor as they have no other remedy.
Based upon the foregoing, the late claim application is granted. Claimants are directed to file and serve and pay the filing fee, or make the appropriate application, in accordance with the Court of Claims Act and all appropriate Court rules the "Notice of Intent to File Claim" (see Exhibit 1 to Defendant's motion) labeled "claim" within 45 days of the date this Decision and Order is filed with the Clerk of the Court.
May 17, 2010
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding these motions:
1. Notice of Motion.
2. Affidavit of Keith D. Miller, Esquire, in support, sworn to January 14, 2010, with exhibits attached thereto.
3. Notice of Cross-Motion.
4. Affirmation of Bonnie Gail Levy, in opposition to Motion No. M-77727, and in support of Defendant's cross-motion with exhibits attached thereto.
5. Affidavit of Keith D. Miller, Esquire, in opposition to Cross-Motion No. CM-77842 and in support of Motion No. M-77727.
1. The Attorney General's Office and Clerk of the Court treated this as a Claim.
2. General Construction Law § 25-a.
3. Defendant's other procedural grounds for dismissal are moot and will not be addressed.