Claimant's motion for leave to file a late claim for property damage to its subrogor's motor cycle was granted.
|Claimant(s):||UTICA NATIONAL INSURANCE COMPANY A/S/O JEROME GAY|
|Claimant short name:||Utica National Insurance Company|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Ross & Suchoff, LLC
By: Brian K. Suchoff, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Michael T. Krenrich, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 9, 2021|
|See also (multicaptioned case)|
Movant, Utica National Insurance Company (Utica) A/S/O Jerome Gay, seeks leave to file a late claim pursuant to Court of Claims Act § 10 (6) to recover for property damage to its insured's motorcycle.
The instant application arises out of a motor vehicle accident between the movant's insured and a New York State Police vehicle on June 27, 2019. In its proposed claim, movant alleges its insured's vehicle was traveling north on Stowersville Road, in the Town of Lewis, County of Essex, State of New York, when a motor vehicle owned by the New York State Police traveling in the opposite direction "attempted to make a left turn into the driveway of 702 Stowersville Rd., directly in front of the Utica insured vehicle's path of travel. The vehicles then collided" (movant's Exhibit A, proposed Claim, ¶ 3, p. 2). Although paragraph "2" of the claim indicates movant is seeking damages for both property damage and loss of use of its insured's vehicle, the total sum claimed as damages is limited to the property damage sustained by its insured's vehicle.(1)
In addition to the proposed claim, movant supports its motion with the affidavit of Steven Wood, Claims Supervisor for Utica, a police report, an estimate of the damage to its insured's motorcycle and copies of correspondence previously sent to Cool Risk Management (Cool Risk), the State's Claims Administrator. Mr. Wood states in his affidavit that as a result of the accident Utica paid for property damage to its insured's vehicle, a 2007 Harley Davidson, at which time it became subrogated to the rights of its insured pursuant to the terms of the applicable policy. Mr. Wood also indicates that Utica sent the New York State Police a "claim" by certified mail, return receipt requested, on September 20, 2019 and provided supporting documentation in December, 2019. Cool Risk denied the claim by letters dated January 14, 2020 and April 14, 2020 (movant's Exhibits G and H).
The first issue for determination upon a late claim motion is whether the application is timely. Court of Claims § 10 (6) requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Property damage claims are governed by the three year statute of limitations set forth in article two of the CPLR (CPLR 214 ). Consequently the instant motion filed on September 28, 2020 is timely with respect to movant's proposed cause of action.
Turning to the statutory factors, Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy." This Court has broad discretion in deciding a motion to permit the late filing of a claim (Calverley v State of New York, 187 AD3d 1426 [3d Dept 2020]; Matter of Barnes v State of New York, 164 AD3d 977 [3d Dept 2018]; Williams v State of New York, 137 AD3d 1579 [4th Dept 2016], appeal dismissed, lv denied 28 NY3d 958 ). " 'No one factor is deemed controlling, nor is the presence or absence of any one factor determinative' " (Hyatt v State of New York, 180 AD3d 764, 766 [2d Dept 2020], lv denied 35 NY3d 909 , quoting Casey v State of New York, 161 AD3d 720, 721 [2d Dept 2018]; see also Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Matter of Barnes v State of New York, 158 AD3d 961, 962 [3d Dept 2018]; Matter of Martinez v State of New York, 62 AD3d 1225 [3d Dept 2009]; Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
Movant offers no excuse for the delay in seeking permission to file a late claim. While this factor weighs against movant, standing alone it is not determinative of the instant application.
Addressing the intertwined issues of notice, opportunity to investigate and prejudice, movant contends the State had notice and a sufficient opportunity to investigate the claim as the driver of the other motor vehicle involved in the collision was operating a vehicle owned by the New York State Police. In addition, movant points out that it presented its property damage claim to the New York State Police on September 20, 2019(2) and again on December 30, 2019 (movant's Exhibits E and F). Since it appears that a New York State employee was directly involved in the accident, the State acquired actual knowledge of the facts of the accident on the date it occurred (see Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist., 90 AD3d 761 [2d Dept 2011]; Wolf v State of New York, 140 AD2d 692 [2d Dept 1988]; Powell v State of New York, 60 Misc 3d 1214 [A] at *3 [Ct Cl, 2018]). As the State had notice and an opportunity to investigate, and has failed to demonstrate prejudice arising from the delay, these factors weigh in movant's favor.(3)
With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective, and the record as a whole provides a reasonable basis to believe a valid cause of action exists (Matter of Martinez v State of New York, 62 AD3d 1225, 1227 [3d Dept 2009]; Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Movant has met this low threshold as it submitted sufficient proof that the operator of the State Police vehicle may bear some degree of fault for the happening of the accident. Notably, the police report indicates that the New York State police vehicle initiated a left turn into a driveway when the movant's subrogor traveling in the opposite direction was unable to stop and struck the right side of the police vehicle. These facts sufficiently demonstrate reasonable cause to believe that a valid cause of action exists.
As for the final factor to be considered, it does not appear that an alternative remedy is available.
Insofar as the majority of factors, including the potential merit of the claim, weigh in movant's favor, the Court will grant the instant application.(4)Based on the foregoing, movant's application for leave to serve and file a late claim is granted and movant is directed to file and serve its claim in accordance with Court of Claims Act § 11 and § 11 -a within forty-five days of the date this Decision and Order is filed.
February 9, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notwithstanding movant's reference in the proposed claim to compensation for "loss of use," movant's Claims Supervisor, Steven Wood, states in his affidavit that the total damages sought are for property damage in the amount of $8,048.80 (movant's Exhibit A, proposed Claim ¶ ¶ 2, 4).
2. A document entitled "Notice of Claim" dated September 20, 2019 was sent certified mail, return receipt requested and, according to the return receipt card, was received by the New York State Police on September 26, 2019 (movant's Exhibit E).
3. In addition, it appears a personal injury claim was filed by movant's subrogors on November 14, 2019 (claim number 133972), which has been assigned to the Hon. W. Brooks DeBow, J.C.C.
4. To the extent the proposed claim indicates in the last paragraph thereof that it is something other than a claim which commences the action, this paragraph should be deleted as it creates an ambiguity as to the nature of the document and whether or not an answer is required.