Claimant's 2nd Motion to file a late claim, trip and fall on the roadway. Proposed claim still fails to include time of fall.
|Claimant short name:||OAKLAND|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||The Odierno Law Firm, P.C.
By: Joseph Odierno, Esq.
|Defendant's attorney:||Hon. Eric T. Schneiderman, Attorney General
By: Alex J. Freundlich, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 20, 2017|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Claimant's Attorney's Affirmation with Annexed Exhibits A-C; and Defendant's Affirmation in Opposition with Annexed Exhibit A.
Claimant, Barbara Oakland, has for the second time brought a motion pursuant to Court of Claims Act (CCA) § 10 (6) seeking an order granting permission to file a late claim(2) . Defendant, the State of New York, opposes the motion.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 ). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application (emphasis added).
Claimant alleges that on September 14, 2016 she tripped and fell on the roadway located approximately 8 feet west of the curb line in front of 185 Broadway and approximately 100 feet north of the intersection of Broadway and Ireland Place in Amityville, New York. She was caused to fall due to a depression/hole in the roadway measuring approximately 7 inches long by 4 inches wide and 1 inch deep.
Claimant does not offer any legally acceptable excuse for the delay in filing the claim. It is well settled that a claimant's mistaken belief that a roadway upon which an accident occurred may have been a County, Village or Town roadway rather than a State roadway does not constitute a reasonable excuse for the delay in filing a claim against the State (Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976]; affd 42 NY2d 854 ). However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.
The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. The Court finds that, given the entirety of the circumstances involved in the present action, these factors weigh against claimant's application.
It does not appear as though claimant has an alternative remedy in this matter. Thus, this factor is found in claimant's favor.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order for a claim to "appear to be meritorious": (1) it must not be patently groundless, frivolous, or legally defective, and (2) 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...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).
The Court finds that claimant has established, for the purposes of this motion, that the claim is meritorious. However, the Court cannot permit the filing of a claim which does not meet the jurisdictional requirements of Court of Claims Act § 11 (b). Court of Claims Act § 11 (b) requires, inter alia, that the claim state the time when the accident occurred. Claimant's failure to include the time when the accident occurred on September 14, 2016 runs afoul of this jurisdictional requirement (Lepkowski v State of New York, 1 NY3d 201 ).
In a prior Decision and Order dated June 19, 2017, this Court previously denied claimant's application for late claim relief due to, inter alia, her failure to include the time when the accident occurred in her proposed claim(3) . Claimant's motion was denied without prejudice to her filing a second late claim motion containing a jurisdictionally sound proposed claim. Inexplicably, claimant now merely resubmits the same incorrectly titled and deficient proposed claim that was put forth in her first motion without any modifications. Claimant's attorney in his affirmation in support of this motion does include a time when the incident occurred but as plainly stated in the language of CCA § 10 (6) as well as this Court's June 19, 2017 Decision and Order, it is the proposed claim which must set forth the information required by CCA § 11.
As a result the Court is constrained to again deny claimant's motion (id.).
Therefore, based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), claimant's motion to file a late claim is denied without prejudice.
December 20, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims
2. Claimant improperly titled her proposed claim a proposed "notice of claim".
3. Claimant mistitled her proposed claim in her first late claim application as a notice of claim.