Opinion
# 2015-018-634 Claim No. NONE Motion No. M-86639
08-13-2015
FRANCISCO SAAVEDRA v. STATE OF NEW YORK
FRANZBLAU DRATCH, P.C. By: Brian M. Dratch, Esquire LAW OFFICES OF SUSAN B. OWENS By: Paul L. Neugebauer, Esquire
Synopsis
Claimant's late claim application is denied.
Case information
| UID: | 2015-018-634 |
| Claimant(s): | FRANCISCO SAAVEDRA |
| Claimant short name: | SAAVEDRA |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-86639 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | FRANZBLAU DRATCH, P.C. By: Brian M. Dratch, Esquire |
| Defendant's attorney: | LAW OFFICES OF SUSAN B. OWENS By: Paul L. Neugebauer, Esquire |
| Third-party defendant's attorney: | |
| Signature date: | August 13, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, by his counsel, brings a late claim application pursuant to Court of Claims Act section 10 (6). Defendant opposes the motion.
The Movant previously filed a timely claim on May 21, 2014, seeking damages for personal injuries he suffered when, as an inmate in the custody of the State. He was injured when the State bus on which he was a passenger was involved in an accident with another State owned bus at Auburn Correctional Facility on February 28, 2014. The claim alleged only that Movant had suffered injury to his arms, lower back, and neck. Defendant brought a motion to dismiss the claim alleging it failed to meet the requirements of Court of Claims Act section 11 (b) and that it failed to adequately allege a serious injury as required by the Insurance Law. The Court, by a Decision and Order filed November 26, 2014, dismissed the claim without prejudice for failure to properly allege a serious injury as required by CPLR 3016 (g). Movant has now brought this late claim application seeking permission to file a new, but now untimely, claim.
Court of Claims Act section 10 (6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act section 10 to make an application to the Court for permission to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10 [6]). Movant's motion is timely (Court of Claims Act § 10 [6]; CPLR § 214 [5]).
In deliberating on Movant's application, the Court has considered the six factors listed in Court of Claims Act section 10 (6) relying upon no one factor (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys. 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). Instead, the Court has balanced all of the factors to determine whether Movant's application should be granted. Yet, unlike a party who has timely filed a claim, on an application for permission to file a late claim there is a heavier burden on the movant (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). After considering Movant's submissions, it is a burden that has not been met.
The first factor, is whether the delay in filing the claim is excusable. Movant's counsel argues that but for the dismissal of the prior timely filed claim, his claim would not be untimely. However, filing a timely but legally defective claim that warrants the granting of a properly brought motion to dismiss is not a valid excuse (Matter of Galvin v State of New York, 176 AD2d 1185, [3d Dept 1991], lv denied 79 NY2d 753 [1992]). Nonetheless, the previously timely filed and served claim certainly provided the State with notice and an opportunity to investigate eliminating any issue of prejudice.
The next factor, is whether the claim appears to be meritorious. Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth. 92 Misc 2d 1, 11 [Ct Cl 1977]). Movant has failed to meet this factor. Movant's application consists of an affirmation from his counsel, a proposed claim verified by counsel, his original claim which was dismissed also verified by counsel, and a copy of the Court's Decision and Order on Motion No. M-85338. The Court has no submission from anyone with personal knowledge of the facts. Counsel's hearsay assertions and conclusory allegations are insufficient to show potential merit or to provide the Court with "competent evidence . . . upon which the court may exercise its discretion." (Matter of Persi v Churchville-Chili Cent. School Dist.72 AD2d 946, 947 [4th Dept 1979]; see also Witko v State of New York, 212 AD2d 889 [3d Dept 1995]; Matter of Vezza v City of Yonkers, 92 AD2d 570 [2d Dept 1983]; cf., Matter of Smith v State of New York, 63 AD3d 1524 [4th Dept 2009]). Moreover, there is also a threshold requirement for any action seeking damages for injuries sustained a motor vehicle accident, to show the claimant suffered a serious injury as defined in the Insurance Law (Insurance Law § 5104 [a] and § 5102 [d]; Ferster v State of New York, 129 Misc 2d 333 [Ct Cl 1985]; Derway v State of New York, UID No. 2014-015-021 [Ct Cl Collins, J., Sept. 3, 2014]). Merely alleging that Movant has "sustained severe and serious personal injuries to and about his body causing him great pain and discomfort and requiring him to seek medical attention" and that he "suffer[ed] excruciating pain and suffering, injury to his arms; injury to his lower back and neck," does not adequately meet Movant's burden on this late claim application (Ferster, 129 Misc 2d at 336; Derway, UID No. 2014-015-021). This is true even if Movant had provided sworn allegations.
Movant's Exhibit C.
The final factor is whether the proposed claimant has any other remedy available. To the extent the allegations in the proposed claim may be accepted as true, Movant was an inmate in the custody of the State of New York, and a passenger in a State vehicle operated by a State employee there does not appear to be any other remedy available to Movant.
Accordingly, based upon the foregoing, Movant's application is DENIED without prejudice.
August 13, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Brian M. Dratch, Esquire, in support, with exhibits attached thereto. 3) Affirmation of Paul L. Neugebauer, Esquire, in opposition, with attachments thereto.