|Claimant(s):||PAUL BLAZE and ELAINE BLAZE|
|Claimant short name:||BLAZE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||McNamee, Lochner, Titus & Williams, P.C.
By: Christopher Massaroni, Esq. and Scott C. Paton, Esq.
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Stephen J. Maher, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||March 24, 2010|
|See also (multicaptioned case)|
Paul Blaze and Elaine Blaze, hereinafter "movants," move this Court for an order pursuant to Court of Claims Act § 10 (6), allowing them to file a late claim. Defendant opposes the motion on the ground that movants have failed to: (1) set forth a reasonable excuse for not timely filing a notice of intention or a claim; (2) show that defendant had notice of the accident and an opportunity to investigate the same, or that defendant was not prejudiced by the failure to timely file; and (3) establish that the proposed claim has merit.
The proposed claim alleges that on December 15, 2008, movants were traveling westbound on Route 5, at the intersection of Route 103, in the Town of Glenville, Schenectady County, when a motor vehicle traveling eastbound on Route 5 turned left in front of movants' vehicle, causing an accident in which movant, Paul Blaze, was seriously injured. Movants allege that the accident occurred as a result of various safety deficiencies at the subject intersection, and seek recovery for personal injuries (as to movant Paul Blaze) and loss of consortium (as to movant Elaine Blaze).
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10). These factors are: (1) whether the delay in filing the claim was excusable; (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 state was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
In the present case, the claim is alleged to have accrued on December 15, 2008. As the claim alleges personal injuries arising out of defendant's alleged negligence, the Statute of Limitations (three years, pursuant to CPLR §214) does not expire until December 15, 2011. Given that movants filed and served their motion on December 8, 2009, they are well within the applicable Statute of Limitations. Accordingly, the Court must now consider the statutory factors set forth in Court of Claims Act § 10 (6).
The first factor is whether the delay in filing and serving the claim was excusable. At the outset, it is noted that an excuse must be offered with respect to only the 90-day period after accrual of the claim (see Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]); Bloom v State of New York, 5 AD2d 930 [3d Dept 1958]). Any further delay in an application for permission to file a late claim may be considered on the issue of prejudice (Cole v State of New York, 64 AD2d 1023, 1024, supra; Walach v State of New York, 91 Misc 2d 167 [Ct Cl 1977] affd 69 AD2d 1015 [4th Dept 1979]).
Movants allege that during the 90 days in which they should have filed a Notice of Intention to File a Claim or a Claim, they were preoccupied and focusing their attention upon Paul Blaze's physical recovery. In addition, they allege that they were not in possession of sufficient information upon which to present a meritorious claim until after the 90-day period had elapsed. They allege that the police accident report did not indicate that there were any highway factors or other environmental factors which contributed to the accident, and that it was not until months later, and notably after movants learned that the driver of the other motor vehicle had liability insurance coverage in the sum of only $100,000.00, that they, through their attorneys, considered whether the intersection was adequately designed and constructed. Movants argue that because their application to file a late claim was within weeks of receiving the State's response to their Fall 2009 FOIL request and within days of receiving a favorable opinion as to liability from their expert, that the delay in filing should be deemed excusable. The Court disagrees.
According to the affidavit of Paul Blaze, sworn to December 7, 2009, and the documents in support, Mr. Blaze was confined to a hospital from December 15, 2008 (the date of the accident) until January 15, 2009, and again from March 17, 2009, until March 20, 2009. While the Court can appreciate why a claim or a notice of intention to file a claim may not have been filed during the time in which he was confined, nothing has been submitted to show that movant was incapacitated or otherwise unable to file, or have filed on his behalf, a claim or a notice of intention to file a claim in between the two hospital visits. The Court cannot find that focus on movant's physical injuries beyond his confinement in the hospital constitutes an excusable delay. Likewise, the Court cannot find that movant's late consideration as to the adequacy of the design and construction of the intersection to be excusable. Accordingly, this factor weighs against the granting of the claimant's motion. The lack of an excusable delay is, however, only one of the factors to be considered by the Court.
The three factors of notice, opportunity to investigate and prejudice are all intertwined and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337 ). Defendant states that while the State may receive notice of the accidents that occur on its numerous State highways via the Department of Motor Vehicles' record-keeping process, it does not mean that it had notice of this particular accident for which the State is alleged to be liable. The Court agrees. A police accident report does not, in and of itself, constitute notice to the State alerting it to the need to investigate a specific accident (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 7-8 [Ct Cl 1977]; cf. Wolf v State of New York, 140 AD2d 692 [2d Dept 1988]). However, while defendant may not have been provided with the requisite notice, the Court finds that it still has an opportunity to investigate the claim and has not been prejudiced, particularly as nothing provided by the parties gives the Court any reason to believe that the subject intersection has been changed in any manner since the date of the accident. Accordingly, these factors weigh in favor of granting movants' motion.
With respect to the factor of alternative remedies, the Court agrees with defendant that movants have an alternative remedy against the driver of the vehicle that struck movants' vehicle. The Court also agrees, however, with movants' explanation that the adequacy of said remedy may be less than sufficient based upon the limits of the insurance policy of the driver, which is alleged to be $100,000. Based on the description of the injuries sustained by movant, Paul Blaze, and his hospitalizations, this alternative remedy may be just a partial remedy. Accordingly, the Court finds that this factor weighs in neither parties' favor (see Epstein v State of New York, 88 AD2d 967 [2d Dept 1982]; Rosenhack v State of New York, 112 Misc 2d 967 ).
The final factor for the Court to consider is whether the claim appears to be meritorious. In order to establish a meritorious cause of action, the movants have the burden of showing that the proposed claim is not patently groundless, frivolous, or legally defective, and the Court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
In support of its motion, movants annex the affidavit of John H. Shafer, P.E., a professional engineer with over 40 years of experience in the fields of transportation and highway safety. In his affidavit, Mr. Shafer indicates that he analyzed the subject accident site at issue and has identified several safety deficiencies that, in his opinion, were the proximate cause of the accident. Mr. Shafer further states that, in his opinion, the State was fully aware of the potential for accidents at said site but failed to correct a known hazardous condition, and that, as a result, it is liable for the subject accident. The Court finds that movants have sufficiently shown reasonably cause to believe that a valid cause of action exists.
Accordingly, after a review of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act §10(6), the Court exercises its discretion and hereby allows movants to serve and file a late claim against defendant. Movants shall, within forty-five (45) days of the date of filing of this Decision and Order, file their proposed claim with the Clerk of the Court and serve a copy of said proposed claim upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the claim, movants are directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
March 24, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion to File a Late Claim, dated December 8, 2009; Affirmation of Christopher Massaroni, Esq., dated December 8, 2009, with Exhibits A through F; Affidavit of Paul Blaze, sworn to December 7, 2009; Affidavit of John H. Shafer, P.E., sworn to December 7, 2009, with Exhibits A through D;
2. Memorandum of Law in Support of Claimants' Motion for Permission to File a Late Claim, dated December 8, 2009;
3. Affirmation of Stephen J. Maher, AAG, in Opposition to Motion to Late File, dated December 30, 2009;
4. Reply Affirmation of Christopher Massaroni, Esq., dated January 5, 2010.