Balance of factors to be considered on late claim application for "survival action" related to timely wrongful death action weigh in Claimant's favor. Motion granted.
|Claimant(s):||RICHARD STEARNS, Individually, and as Administrator of the Estate of KEVIN STEARNS|
|Claimant short name:||STEARNS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY|
|Footnote (defendant name) :|
|Claim number(s):||117769, 117928|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||HOGAN WILLIG
BY: JACLYN WANEMAKER, ESQ.
|Defendant's attorney:||HON. ANDREW M. CUOMO
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 30, 2010|
|See also (multicaptioned case)|
The following papers, numbered 1 through 12, were read on motion by Claimant for permission to file a late claim, pursuant to Court of Claims Act § 10(6), and on cross-motion by Defendants for an order dismissing all or a portion of the previously filed claims:
1. Claimant's Notice of Motion (M-78111), filed April 7, 2010;
2. Affirmation of Jaclyn Wanemaker, Esq., dated March 12, 2010, with attached exhibits;
3. Affirmation of Linda Stravalaci Grear, Esq., dated March 5, 2010, with attached exhibits;
4. Affidavit of James D. Orr, sworn to April 1, 2010;
5. Affidavit of Richard Stearns, sworn to April 9, 2010;
6. Defendants' Notice of Cross-Motion (CM-78372), filed June 8, 2010;
7. Affirmation of Thomas G. Ramsay, Esq., dated June 7, 2010, with attached exhibits;
8. Affirmation of Jaclyn Wanemaker, Esq., dated July 14, 2010;
9. Affidavit of Mark Rice, sworn to July 14, 2010;
10. Affidavit of Richard Stearns, sworn to July 14, 2010;
11. Reply Affirmation of Thomas G. Ramsay, Esq., dated July 19, 2010, with attached exhibits;
12. Affidavit of Michael Scuteri, sworn to July 19, 2010.
Claimant Richard Stearns' son, Kevin Stearns, was killed in a single vehicle motorcycle accident on September 26, 2009. The accident occurred on the eastbound side of the New York State Thruway (I-90) in the town of Pembroke, New York. According to the police accident report (Claimant's Exhibit A), Kevin Stearns was driving in the rain and lost control of his motorcycle when he changed from the left-hand "passing lane" into the right-hand "travel lane." He was thrown from the motorcycle and struck the guiderail, which caused his death.
Claimant filed Claim No. 117769 on December 7, 2009. This was within 90 days of the accident but before he was appointed as administrator of the estate. Claimant filed an amended claim on January 14, 2010, which included allegations of serious injury under the Insurance Law. The next day, January 15, 2010, Claimant was appointed temporary administrator of Kevin Stearns' estate. Thereafter, on January 21, 2010, Claimant filed and served another claim (No. 117928), properly alleging that he had been appointed administrator. Accordingly, although Claim No. 117769 was filed and served within 90 days of the accident, it and its amendment were both filed before Claimant was appointed temporary administrator. And while Claim No. 117928 was filed and served within 90 days of Claimant being appointed temporary administrator, it was filed and served more than 90 days after the September 26, 2009 accident.
In its answer to Amended Claim No. 117769, Defendants assert as an affirmative defense that Claimant did not have authority or standing to commence the action. In its answer to Claim No. 117928, Defendants assert an affirmative defense that the cause of action for conscious pain and suffering (the survival action) was untimely as that claim was not filed within 90 days of the September 26, 2009 accident.CURRENT MOTIONS
With his motion, Claimant, implicitly recognizing the validity of Defendants' affirmative defenses, has moved for permission to file a late claim to: 1) make sure that the survival action is timely; and 2) add Claimant's other son, Nathaniel, as a Claimant for the property damage cause of action.(1) Defendants have cross-moved for an order dismissing all of Claim No. 117769 because it was commenced before Claimant had authority to do so, and those portions of Claim No. 117928 that assert causes of action for Kevin's conscious pain and suffering and for property damage because the claim was not filed within 90 days of accrual.DEFENDANTS' CROSS-MOTION
Initially, I note that I have no choice but to grant Defendants' cross-motion with regard to Claim No. 117769. Defendants correctly point out that this action was commenced prior to the time that Claimant was appointed temporary administrator of Kevin's estate. In this circumstance, the law is clear that, because Clamant did not have the legal capacity to commence an action on the estate's behalf, Claim No. 117769 is a nullity and must be dismissed (see Lichtenstein v State of New York, 252 AD2d 921, affd 93 NY2d 911; Santos v State of New York, Ct Cl, October 22, 2003 [Claim No. 107126, Motion No. M-66359], Midey, J., UID No. 2003-009-52).
With regard to Claim No. 117928, I note that Court of Claims Act ("CCA") § 10(2) provides that a claim against the State for wrongful death must be filed with the Clerk and served upon the Attorney General within 90 days after the appointment of a personal representative of the decedent. Here, there is no dispute that the cause of action for wrongful death asserted in Claim No. 117928 has been timely filed and served. However, the provisions of CCA § 10(2), pertaining to wrongful death, do not apply to Claimant's causes of action for conscious pain and suffering and for property damage (Pelnick v State of New York, 171 AD2d 734; Barrett v State of New York, 161 AD2d 61, affd 78 NY2d 1111).
Rather, those actions are governed by CCA § 10(3), which requires that a claim be served and filed, or that a notice of intention be served, within 90 days after accrual of the cause of action. Here, neither a valid claim, nor a notice of intention, were served and/or filed within the requisite period of time. Accordingly, the claim is timely for the wrongful death cause of action (CCA § 10), but untimely for the "survival" (conscious pain and suffering) and property damage causes of action (CCA § 10). Accordingly, I have no choice but to dismiss those portions of Claim No. 117928 which allege causes of action for Kevin Stearns' conscious pain and suffering and for property damage to the motorcycle (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).CLAIMANT'S MOTION
Claimant's motion (M-78111) seeks permission to file a late claim which, in addition to the wrongful death cause of action, asserts both the survival and property damage causes of action mentioned above. 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).
Of these six factors, Defendants dispute factors (2) and (6); whether the Claimant has other remedies and whether the claim appears to be meritorious. The other four 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).
With regard to whether Claimant has other adequate alternative remedies, Defendants assert that Claimant potentially has a cause of action against Nathaniel Stearns, the owner of the motorcycle. To support this assertion, Defendants argue that the tires on the motorcycle were bald at the time of the accident and so an action against the owner of the motorcycle is viable. This allegation is based on Defense counsel's opinion of how the tires look in two photographs (Defendants' Exhibits A and B). However, as Claimant correctly argues, Defendants' counsel is not an expert in such matters. Further, Claimant has submitted the affidavit of Mark Rice, a licensed New York State Motor Vehicle Inspector, who inspected the tires on the motorcycle and who opines that the tires are in adequate condition and would pass inspection. Accordingly, I find that this factor weighs in Claimant's favor.
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 note before addressing this factor that counsel for both Claimant and Defendants have agreed that, although the proposed claim identifies the State of New York as a Defendant, the only proper potential Defendant in the proposed claim is the New York State Thruway Authority ("Thruway Authority").
Claimant's theory of liability asserted in the proposed claim is that Claimant's decedent lost control of the motorcycle when he drove over an area of the New York State Thruway ("Thruway") that was sealed with excessive amounts of crack sealer (strips of which are called "tar snakes"). According to Claimant's submission, the American Motorcycle Association and the New York State Department of Transportation (" DOT") had been working on reducing tar snakes on New York State roads, as those entities considered them dangerous to motorcyclists if they are too wide, especially when they are wet with rain. Claimant has submitted evidence (Exhibit I) that the DOT has been working on this issue since 1996 and has implemented new standards for roadways under its jurisdiction that tar snakes are to be no more than 2 inches wide and less than 3 millimeters thick. The documents submitted by Claimant indicate that the previous DOT standards permitted tar snakes up to 4 inches wide and 1/8 inch thick. The record in this matter demonstrates that the tar snakes in question at Kevin Stearn's accident location were between 12 and 15 inches wide. No estimates of their thickness were given.
Claimant has submitted the affidavit of James Orr, an accident reconstruction expert, who opines that large tar snakes are dangerous, and that those in the area of the accident were much too large for motorcycles to safely navigate. He opines that the tar snake Kevin Stearns drove over just before his accident was a proximate cause of the crash.
Defendants argue, however, that although Claimant has supplied the Court with the DOT standards regarding tar snakes, these standards have no relevance in this matter because the DOT is not responsible for the roadway where the accident occurred. As the accident occurred on the Thruway, the Thruway Authority is responsible for its construction and maintenance. Defendants argue that Claimant has failed to submit any evidence that the Thruway Authority breached any of its internal standards by permitting tar snakes up to 15 inches wide. I find little merit in this argument, however, as evidence that the tar snakes were three to four times larger than would be permitted by DOT standards tends to support Claimant's theory and his expert's opinion that the tar snakes in question, which were created by Defendants, constituted a dangerous condition.
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). Although Claimant has not proven that the Thruway Authority violated any of its own internal standards relating to tar snake width and height, 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 No. M-77727, CM-77842], Fitzpatrick, J., UID No. 2010-018-114]; Delano v New York State Thruway Auth., 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 Defendants' motion for dismissal of Claim No. 117769 is GRANTED; and it is further
ORDERED, that Defendants' cross-motion for dismissal of those portions of Claim No. 117928 that assert causes of action for conscious pain and suffering and for property damage is GRANTED; and it is further
ORDERED, that Claimant's motion for permission to file a late claim is GRANTED. Claimant is directed to file and serve a claim identical to the proposed claim attached to his moving papers, except that the claim to be filed shall list the New York State Thruway Authority as the only Defendant, and to do so in conformance with the requirements of the Court of Claims Act within sixty (60) days from the date this decision and order is filed.
September 30, 2010
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims
1. This cause of action was alleged in both claims, but apparently there was some confusion as to whether the motorcycle belonged to Kevin or his brother Nathaniel, and Nathaniel has been identified as the owner.