Motion to late file Claim pursuant to CCA § 10(6) denied as proposed Claim lacks specificity as required by CCA § 11(b).
|Claimant(s):||MAIN STREET AMERICA PROTECTION INSURANCE CO. as Subrogee of CHRISTIAN M. MOZDZIER|
|Claimant short name:||MAIN STREET AMERICA PROTECTION INSURANCE CO.|
|Footnote (claimant name) :||The proposed Claim and the Affidavit of Mr. Freiman submitted in support of the Motion both state that the subrogor's forename is Christine not Christian.|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the State of New York as the proper defendant.|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||CREEDON & GILL P.C.
By: Peter J. Creedon, Esq.
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Christopher J. Kalil, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||September 28, 2021|
|See also (multicaptioned case)|
For the reasons set forth below, the application of Movant, Main Street America Insurance Co. a/s/o Christian M. Mozdzier, to serve and file a late Claim pursuant to Court of Claims Act § 10(6), is denied.
This Motion was filed with the office of the Clerk of the Court on June 3, 2020, but was not transmitted by that office to the undersigned until July 29, 2021. The Motion was assigned a Return Date by the Clerk of the Court of August 25, 2021, however, the Return Date was adjourned, at the request of Defendant and on consent of Movant, to September 22, 2021.
The proposed Claim, attached to the Motion papers as Exhibit 3, as well as the information set forth in the Affidavit of Matthew D. Freiman (hereinafter, "Freiman Affidavit"), Director of Craig/IS LTD., the subrogation vendor for Main Street America Protection Insurance Co. (hereinafter, "MSA"), allege that MSA is an entity duly authorized to engage in the business of providing automobile insurance in the State of New York. On February 12, 2019, an automobile policy of insurance issued by MSA and benefitting its insured, Christine Mozdzier, was in full force and effect, providing, among other coverages, automobile collision coverage. On February 12, 2019 at about 10:55 a.m., Alyssa Tarbox was permissively operating an MSA-insured motor vehicle owned by Christine Mozdzier in a safe and lawful manner, traveling South on New York State Highway 68. Without warning, a vehicle owned by the New York State Department of Corrections and Community Supervision (hereinafter, "DOCCS"), which was parked on the South side of the road and being operated by DOCCS' employee Richard Hugh, pulled out onto the road in front of Ms. Tarbox, causing a collision between the two vehicles. It is asserted that Mr. Hugh was negligent and caused this accident, without any fault or contribution on the part of Ms. Tarbox, by his failure to see what was there to be seen, his failure to keep his vehicle under proper control, his failure to keep a proper lookout, and his failure to yield the right-of-way to Alyssa Tarbox.
The proposed Claim asserts:
THE TIME AND THE PLACE WHERE THE CLAIM AROSE:
On February 12th, 2019 at about 10:55 a.m. State Highway 68, Canton, New York.
(Proposed Claim, ¶ 3)
Movant seeks damages in the amount of $8,195.12.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed Claim asserts a cause of action for negligence (CPLR § 214, a three-year Statute of Limitations), it appears that the proposed Claim is timely made as Movant asserts that the negligence occurred on February 12, 2019.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant asserts that it did file a Claim with the Court, but did not serve the Claim upon Defendant because the Claim form it used, did not specify that requirement (Freiman Affidavit, ¶ 8). The Claim was dismissed by the Court based upon MSA's failure to comply with the service requirements of § 11 of the Court of Claims Act (Main Street America Protection Insurance Co. v State of New York, UID No. 2019-040-099 [Ct Cl, McCarthy, J., Oct. 28, 2019]). Lack of knowledge of the Court's filing requirements is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A] [Ct Cl 2006]). However, tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together. Here, Movant has not asserted or established in its Motion papers that Defendant had notice of the essential facts constituting the Claim or an opportunity to investigate. While Movant asserts in conclusory fashion that Defendant "will not be prejudiced" (Freiman Affidavit, ¶ 12), Movant does not explain how this is the case.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does have a possible alternate remedy against the individual driving the other vehicle.
The sixth, final, and perhaps the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 , affd sub nom. Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
Court of Claims Act § 10(6) requires that the proposed Claim contain all the information required by Court of Claims Act § 11. Court of Claims Act § 11(b) requires that, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and … the total sum claimed" (see Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]).
In his Affirmation in Opposition to the Motion, Defense counsel asserts that the proposed Claim's allegation that the accident occurred on "State Highway 68, Canton, New York," without further specificity as to any particular location, is jurisdictionally insufficient for purpose of Court of Claims Act § 11(b) (Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General [hereinafter, "Kalil Affirmation"], ¶ 10; see proposed Claim, ¶¶ 2, 3).
It is well established that the failure to satisfy the substantive pleading requirements of Court of Claims Act § 11(b) is a jurisdictional defect that requires dismissal of the Claim (Kolnacki v State of New York, 8 NY3d 277, 280-281 ; Lepkowski v State of New York, 1 NY3d 201, 206-207 ; Czynski v State of New York, 53 AD3d 881, 882-882 [3d Dept 2008], lv denied 11 NY3d 715 ). As stated by the Appellate Division, Third Department in Morra v State of New York (107 AD3d 1115, 1115-1116 [3d Dept 2013]):
Although "absolute exactness" is not required (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept] ), the claim must " 'provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability' " (Robin BB. v State of New York, 56 AD3d 932, 932-933 [3d Dept] , quoting Sinski v State of New York, 265 AD2d 319, 319, [2d Dept] ). However, defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York [supra, at 208]). Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result (see Kolnacki v State of New York, [supra] at 281; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept] , lv dismissed 15 NY3d 911 ).
Here, the Court concludes that the place where the proposed Claim accrued is not sufficiently detailed in the Claim. An allegation that the proposed Claim accrued on State Highway 68 in Canton, New York, without further specificity, is insufficient to meet the specificity requirements of Court of Claims Act § 11(b) (Sheils v State of New York, 249 AD2d 459, 460 [2d Dept 1988] [accident occurred along roadway somewhere on property with 1,000-foot frontage failed to provide sufficient description of the location of the accident]; Mutton v State of New York, UID No. 2019-040-015 [Ct Cl, McCarthy, J., Feb. 13, 2019] [accident occurred on State Highway 67 in the Town of Johnstown, New York, at a sharp right-hand turn, without further specificity, was insufficient]; Giamichael v State of New York, UID No. 2016-040-043 [Ct Cl, McCarthy, J., Jun. 14, 2016] [accident occurred on the Saranac River in the vicinity of Plattsburgh, New York, failed to provide sufficient description of the location of the accident]; see Morra v State of New York, supra at 1116; M.D. v State of New York, UID No. 2019-040-046 [Ct Cl, McCarthy, J., July 2, 2019]).
The Court notes that Movant did not provide a description of the accident location that may have been contained in a police accident report, if one was made, to help identify the area better. In addition, Movant did not identify the location by mile marker.
As the Court finds that the proposed Claim fails to satisfy the pleading requirements of Court of Claims Act § 11(b), the proposed Claim lacks the appearance of merit.
Accordingly, the Motion is denied, without prejudice, to Movant making another Motion on sufficient papers, prior to the expiration of the applicable Statute of Limitations.
September 28, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Movant's Motion to file a late claim pursuant to Section 10(6) of the Court of Claims Act:
Notice of Motion, Affidavit in Support,
and Exhibits attached 1
Affirmation in Opposition 2