New York State Court of Claims

New York State Court of Claims
ROCKELL v. THE STATE OF NEW YORK, # 2010-031-025, Claim No. 115884, Motion No. M-77797, Cross-Motion No. CM-77867


Claimant failed to properly serve either a notice of intention to file a claim or a claim within 90 days of accrual as required by Court of Claims Act 10(3). Defendant's motion for dismissal of the claim is granted. However, upon balancing the factors set forth in CCA 10(6) Claimant's application for permission to file a late claim is granted.

Case information

UID: 2010-031-025
Claimant(s): JAMES T. ROCKELL
Claimant short name: ROCKELL
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115884
Motion number(s): M-77797
Cross-motion number(s): CM-77867
Claimant's attorney: DOUGLAS R. BURGESS, ESQ.
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 23, 2010
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Defendant for dismissal of the claim, and on cross-motion by Claimant for permission to file a late claim:

1) Defendant's Notice of Motion (M-77797), filed February 4, 2010;

2) Affirmation of Thomas G. Ramsay, Esq., dated February 3, 2010, with attached exhibits;

3) Claimant's Notice of Cross-Motion (CM-77867), filed February 24, 2010:

4) Affirmation of Douglas R. Burgess, Esq., dated February 17, 2010, with attached exhibits;

5) Reply Affirmation of Thomas G. Ramsay, Esq., dated February 23, 2010;

6) Filed Documents: Claim and Verified Answer.

In his claim, filed on September 26, 2008, Claimant, James T. Rockell alleges that, on March 8, 2008, the driver of a New York State Department of Transportation snowplow operated his vehicle in a negligent and reckless manner so that he caused ice and snow to be thrown into Claimant's place of business located at 466 Ridge Road West in the City of Rochester. According to Claimant, the snowplow was traveling at such a rate of speed that nearby pedestrians feared for their safety and ran into stores and shops along the road. Claimant alleges that the force of the snow and ice thrown by the plow broke a plate glass window, a graphics sign and an emergency enclosure. He seeks a total of $1,214.57 in damages.

With motion M-77797, Defendant seeks dismissal of the claim. With cross-motion CM-77867, Claimant, apparently recognizing the potential success of Defendant's motion, requests permission to file a late claim.


In its motion, Defendant asserts that the claim must be dismissed, as neither a notice of intention to file a claim nor a claim were properly served within 90 days of accrual of the claim, as required by Court of Claims Act ("CCA") 10(3). Claimant does not dispute Defendant's assertions that no notice of intention was served and no claim was filed or served within 90 days of accrual of the alleged cause of action. CCA 10(3) requires that a claim based upon injury to personal property resulting from the negligence of an agent of the State, must be filed and served within 90 days unless Claimant has served a notice of intention to file a claim. As stated above, Claimant did not serve either document within 90 days of accrual. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in CCA 10 are jurisdictional in nature and must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). The Court is not free to disregard the requirements of this section. "[D]iscretion, equity, or a harsh result may not temper application of a rule of law" (Martin v State of New York, 185 Misc 2d 799, 804). Accordingly, Defendant's motion must be granted and the claim dismissed as untimely.


In response to Defendant's motion to dismiss, Claimant has filed cross-motion CM-77867 in which he requests permission to file a late claim.

Subdivision 6 of 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

In its opposition to Claimant's cross-motion, Defendant disputes only factor 6 (merit). The other factors are, therefore, presumed to weigh in Claimant's favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024).

Of the six enumerated factors in CCA 10(6), it is the appearance of merit that is most significant. It would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

In its opposition, Defendant has correctly pointed out Claimant must demonstrate "reckless disregard" as opposed to mere negligence in order to recover in this matter. Section 1103(b) of the Vehicle and Traffic Law states that the normal rules of the road shall not apply to "hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway," however, the operators of such vehicles have the "duty to proceed at all times during all phases of such work with due regard for the safety of all persons" and shall be responsible for the "consequences of their reckless disregard for the safety of others." Snowplows engaged in snow removal operations are hazard vehicles within the meaning of Section 1103(b) and, therefore, exempt from the normal rules of the road and liable only for conduct that constitutes reckless disregard for the safety of others (Riley v County of Broome, 95 NY2d 455). The Court of Appeals has defined reckless disregard for the safety of others as the "conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow, and done with conscious indifference to the outcome (citations omitted)" (Szczerbiak v Pilat, 90 NY2d 553, 557).

Although Claimant has not proven reckless disregard, that is not required at this point in time. While the standard on a late filing application mentioned above clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections, nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 at 11-12 ). In this instance, I find that Claimant has demonstrated the existence of merit to his proposed claim (see NY Central v State of New York, Ct Cl, May 17, 2010 [Claim No. 114990, Motion Nos. M-77727 and CM-77842], Fitzpatrick, J., UID No. 2010-018-114; Delano v New York State Thruway Authority, Ct Cl, February 18, 2009 [Motion No. M-76060], Scuccimarra, J., UID No. 2009-030-508).

Upon reviewing and balancing all of the factors enumerated in CCA 10(6), the Court finds that they weigh in Claimant's favor. Based upon the foregoing, it is hereby

ORDERED, that Defendant's motion for dismissal of claim number 115884 is GRANTED. And it is further,

ORDERED, that Claimant's cross-motion for permission to file a late claim is GRANTED. Claimant is 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, a claim identical to his original but untimely claim (see Defendant's Exhibit A), and to do so within sixty (60) days from the date this decision and order is filed.

June 23, 2010

Rochester, New York


Judge of the Court of Claims