New York State Court of Claims

New York State Court of Claims
NY CENTRAL a/s/o MALAKIE v. THE STATE OF NEW YORK, # 2010-031-037, Claim No. , Motion No. M-77833


Late claim application for permission to assert subrogation cause of action for medical benefits paid to insured fails to allege, or offer evidence to demonstrate, that Claimant's insured suffered serious injury as required by Insurance Law 5102(d). Motion denied.

Case information

UID: 2010-031-037
Claimant short name: NY CENTRAL a/s/o MALAKIE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
Motion number(s): M-77833
Cross-motion number(s):
Claimant's attorney: BROWN & KELLY, LLP
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 28, 2010
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Claimant for permission to file a late claim:

1. Claimant's Notice of Motion, filed February 16, 2010;

2. Affidavit of Thomas K. Greene, sworn to February 8, 2010 ;

3. Affirmation of Carolyn M. Henry, Esq., dated February 10, 2010, with attached exhibits;

4. Affirmation of Reynolds E. Hahn, Esq., dated April 7, 2010, with attached exhibits;

5. Reply Affirmation of Carolyn M. Henry, Esq., dated April 15, 2010.

With this motion, New York Central Mutual Fire Insurance Company ("New York Central") seeks permission to file a late claim pursuant to 10(6) of the Court of Claims Act ("CCA"). On February 12, 2007, New York Central's insured, Lawrence R. Malakie, was injured in a motor vehicle accident which occurred at the intersection of Main and Exchange Streets in Attica, New York. At that time, Mr. Malakie was waiting to make a left-hand turn from Main Street onto Exchange Street when he was struck from behind by a vehicle owned by the New York State Department of Environmental Conservation. In its proposed claim, New York Central alleges a subrogation cause of action and seeks to recover $20,182.57 in insurance benefits for Mr. Malakie's medical expenses.

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).

Claimant argues that its delay in filing is excusable because it was engaged in extended settlement negotiations with Defendant and that Defendant failed to advise New York Central of the filing requirements of the CCA. The fact that the parties were engaged in settlement negotiations, however, is not a reasonable excuse for failing to file a timely claim (Prusack v State of New York, 117 AD2d 729) and, of course, Defendant has no obligation to instruct Claimant on the requirements of the CCA. This factor weighs in Defendant's favor.

Claimant has not addressed whether or not it has an alternative remedy and, accordingly, I find that this factor, too, weighs in Defendant's favor.

The next three factors covering notice, opportunity to investigate and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). I find that these factors weigh in Claimant's favor as the settlement negotiations and the fact that Mr. Malakie and his wife have commenced their own timely action relating to the accident clearly demonstrate that Defendant has had notice of and an opportunity to investigate and prepare for this claim.

The final factor to be considered is the appearance of merit. It has often been said that of the six factors set forth in CCA 10(6), it is the appearance of merit that is most significant, as 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). I find that Claimant has also failed to demonstrate that its proposed claim has the appearance of merit.

In its proposed claim based upon subrogation, New York Central "stands in the shoes of its insureds and its rights to proceed against the [Defendant], being derivative in nature, are limited to such rights as the [Claimant] would have had against such [Defendant]" (Niemann v Luca, 168 Misc 2d 1023, 1027; citing Federal Ins. Co. v Anderson & Co., 75 NY2d 366). As Mr. Malakie's injuries were the result of a motor vehicle accident, in order to recover, New York Central must demonstrate that Mr. Malakie suffered serious injury as defined by Insurance Law 5102(d) (Licari v Elliot, 57 NY2d 230; Giannattasio v State of New York, Ct Cl, June 25, 2001 [Claim Nos. 97741 and 100199, Motion No. M-63325], Read J., UID No. 2001-001-034). In its motion papers, New York Central asserts only that Defendant's agent was negligent and at fault for causing the accident. While that may be true, nothing in the proposed claim or the supporting papers submitted with it allege, let alone demonstrate, that Mr. Malakie suffered a serious injury as defined by the Insurance Law 5102(d).

Moreover, even if serious injury had been alleged, 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; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). New York Central has failed to make any evidentiary showing related to Mr. Malakie's injuries (Hoover v State of New York, Ct Cl, September 30, 2009 [Motion No. M-76571], Ferreira, J., UID No. 2009-039-145; Crawford v State of New York, Ct Cl, June 18, 2007 [Motion No. M-73291], Moriarty, J., UID No. 2007-037-027). Accordingly, I find that New York Central has failed to demonstrate the merit of its proposed claim.

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

ORDERED, that New York Central's motion for permission to file a late claim is denied.

June 28, 2010

Rochester, New York


Judge of the Court of Claims