Opinion
# 2014-010-063 Motion No. M-85521
09-29-2014
LAURA TERZANI as THE ADMINISTRATRIX OF THE ESTATE OF JOHN TERZANI, JR. v. JASON FITZPATRICK & THE STATE OF NEW YORK
DECARO & DECARO, P.C. By: Philip A. DeCaro, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: J. Gardner Ryan, Assistant Attorney General
Synopsis
Movant's late claim application granted, defendant does not effectively argue undue prejudice.
Case information
| UID: | 2014-010-063 |
| Claimant(s): | LAURA TERZANI as THE ADMINISTRATRIX OF THE ESTATE OF JOHN TERZANI, JR. |
| Claimant short name: | TERZANI |
| Footnote (claimant name) : | |
| Defendant(s): | JASON FITZPATRICK & THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-85521 |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | DECARO & DECARO, P.C. By: Philip A. DeCaro, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 29, 2014 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-3 were read and considered by the Court on movant's late claim application:
Notice of Motion, Supporting Affirmation and Exhibits..........................................1
Affirmation in Opposition and Exhibit.....................................................................2
Reply Affirmation and Exhibits.................................................................................3
The proposed claim alleges that on August 19, 2013 at approximately 6:30 p.m., the New York State Police received a 911 call that an emotionally disturbed man was armed with a handgun in the woods behind the Terzani home in Hopewell Junction (Movant's Ex. B). Approximately 40 to 50 police officers surrounded the area. At approximately 2:20 a.m., at August 20, 2013, the state police rushed John Terzani, Jr., and tased him at least three times. A state police officer then shot and killed Terzani. On November 20, 2013, defendant received, by ordinary mail, a Notice of Claim asserting a wrongful death claim brought by Terzani's parents (Movant's Ex. A; Defendant's Ex. 1). The movant, Terzani's wife, retained counsel who was not supportive of her proposed claim against the State. Thus, she did not timely bring a claim against the State. On July 29, 2014, movant obtained new counsel and presented this late claim application.
Movant's reply papers establish her status as Administratrix.
In considering a late claim application, Court of Claims Act § 10 (6) requires that the Court consider, among other relevant factors: (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 claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
While movant does not offer a valid excuse for her delay, the presence or absence of any one factor is not determinative. Significantly, defendant does not effectively argue undue prejudice or failure to timely investigate the underlying circumstances related to the proposed claim. Movant asserts that Terzani never took any aggressive action against the police and that the police departed from acceptable standards and training and were reckless in using excessive force against Terzani (see Newsome v County of Suffolk, 109 AD3d 802 [2d Dept 2013]; Lubecki v City of New York, 304 AD2d 224 [1st Dept 2003]). Upon consideration of all the relevant factors, the Court finds that movant has sufficiently established entitlement to the granting of her application. It is noted, however, that a greater burden of proof rests upon movant to prevail at trial.
Movant's application for leave to serve and file a late claim against the State is GRANTED. The claim shall be served and filed within 45 days of the filed stamped date of this Decision and Order and shall comply with the provision of the Court of Claims Act.
To the extent that the proposed claim is asserted against New York State Trooper Jason Fitzpatrick, the Court is without jurisdiction to hear claims against individual officers.
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September 29, 2014
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims