Opinion
Claim 133697
12-22-2021
Diana Alati, Individually, and as Co-Administrator of the Estate of ANDREW ALATI, deceased, and ATTILIO ALATI, Individually, and as Co-Administrator of the Estate of ANDREW ALATI, deceased, Claimant, v. The State of New York, [1] Defendant.
For Claimant: Dell & Dean, PLLC By: Andrea R. Laterza, Esq. For Defendant: HON. LETITIA JAMES, ATTORNEY GENERAL By: John L. Belford, IV, Assistant Attorney General
Unpublished Opinion
For Claimant:
Dell & Dean, PLLC
By: Andrea R. Laterza, Esq.
For Defendant:
HON. LETITIA JAMES, ATTORNEY GENERAL
By: John L. Belford, IV, Assistant Attorney General
MAUREEN T. LICCIONE, JUDGE
The instant claim was filed on September 26, 2019 and served by claimants Diana Alati and Attilio Alati, co-administrators of the estate of Andrew Alati, on September 23, 2019. Issue was joined on November 4, 2019. Claimants now move for leave to amend the claim, or, in the alternative, for leave to file and serve a late claim. Defendant opposes the motion.
The claim (Affirmation in Support, Exhibit A), arose on June 30, 2019 at approximately 6:05 p.m. when claimants' decedent, Andrew Alati, was crossing Hempstead Turnpike (New York State Route 24) in Levittown, New York on or with his bicycle. Andrew was crossing Hempstead Turnpike northbound, on the west side of the intersection of Hempstead Turnpike and Berger Avenue when he was struck by a motor vehicle, sustaining injuries that resulted in his death. The claim alleges the divider where Andrew was struck had improper signals, markings and defective design. The claim asserts several causes of action for negligent highway design.
Claimants now seek to amend the location where the claim arose. The original claim states that the place where the claim arose is as follows:
Roadway divider located within the middle of the roadway, and/or the roadway, at the location near or about 3850 Hempstead Turnpike (NY State Route 24), Levittown, New York, in the County of Nassau, State of New York. The location is at or around the west side of the intersection of Hempstead Turnpike and Berger Avenue. Hempstead Turnpike runs east-west direction, and Berger Avenue runs north-south direction (Verified Claim, p. 2).
Claimants explain that the original police accident report (Affirmation in Support, Exhibit C), listed the accident location as 3850 Hempstead Turnpike, which is the location that claimants stated in their original claim. Thereafter, the Nassau County Police Department's Detective Division issued a supplementary report (Affirmation in Support, Exhibit D), that listed the accident scene as located in front of 2575 Hempstead Turnpike. Claimants' counsel then investigated the accident location and determined that the accident actually occurred in front of 3767 Hempstead Turnpike (Affirmation in Support, ¶ 8). The amended accident location is.2 miles from the accident location pled in the original claim and spans the length of the Target parking lot, which is located at 3850 Hempstead Turnpike - the address identified in the original claim (id., ¶¶ 29-30). The proposed amended claim states that the place where the claim arose is as follows:
Roadway divider located within the middle of the roadway, and/or the roadway, at the location near or about 3767 Hempstead Turnpike (NY State Route 24), Levittown, New York, in the County of Nassau, State of New York. The location is at or around the intersection of Hempstead Turnpike and the unnamed cross street connecting the parking lots between 3767 Hempstead Turnpike and 3850 Hempstead Turnpike. Hempstead Turnpike runs east-west direction, and the aforementioned cross street runs north-south direction (Affirmation in Support, Exhibit E, p. 2).
Defendant argues that, because claimants concede that the proposed amended accident location is.2 miles from the location originally pled, the claim is jurisdictionally defective for failing to comply with Court of Claims Act § 11 (b) (Affirmation in Opposition, ¶ 6). As jurisdictional defects cannot be cured by an amendment, defendant argues that the claim cannot be amended and must be dismissed (Miller v State of New York, UID No. 2019-054-038 [Ct Cl, W. Rivera, J., July 19, 2019]).
Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.
Court of Claims Act § 11 (b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed" (Lepkowski v State of New York, 1 N.Y.3d 201, 206 [2003] [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 A.D.3d 1415, 1416 [3d Dept 2016] [internal quotation marks and citations omitted]; see Morra v State of New York, 107 A.D.3d 1115, 1115 [3d Dept 2013]; Deep v State of New York, 56 A.D.3d 1260, 1261 [4th Dept 2008]). "Further, the State is not required to go beyond the claim or notice of intention in order to investigate an occurrence, or ferret out information which should be provided under section 11(b)" (Wilson v State of New York, 35 Misc.3d 227, 230 [Ct Cl 2011], citing Lepkowski v State of New York, 1 N.Y.3d at 208; Cobin v State of New York, 234 A.D.2d 498, 499 [2d Dept 1996], lv dismissed 90 N.Y.2d 925 [1997]).
It is well-established that a lack of detail as to the exact location of an incident renders a claim jurisdictionally defective where the claim alleges an injury caused by an alleged defect on the premises (see Vargas v State of New York, 83 A.D.3d 1525 [4th Dept 2011] [dismissal of claim affirmed where location of motorcycle accident on a 4.7 mile stretch of roadway was not specified]; Sheils v State of New York, 249 A.D.2d 459, 459-460 [2d Dept 1998] [notice of intention to file a claim insufficient where the accident location did not identify specific defect location in 1, 000-foot roadway]; Cobin v State of New York, 234 A.D.2d at 499 [description of trip and fall location "on the boardwalk at Jones Beach, County of Nassau, State of New York, in the East Quarter Circle, or its vicinity" was insufficient to comply with Court of Claims Act § 11 (b)]). In contrast, in a claim concerning the claimant's motor vehicle accident involving a State-owned vehicle, the Fourth Department held that the claimant's identification of the specific street where the collision occurred, with no other identifying information, was sufficient to comply with Court of Claims Act § 11 (b) even though the street was 3.2 miles in length (Deep v State of New York, 56 A.D.3d at 1260-1260). In Deep, the Court reasoned that, because of the nature of the claim, "i.e., a motor vehicle accident allegedly caused by the negligent driving of defendant's agent," the identification of the specific street where the accident occurred was sufficient to allow the State to investigate the claim (id. at 1261). However, in Liberty Mut. Ins. Co. v State of New York, 30 Misc.3d 693, 696 [Ct Cl 2010], which also involved a motorcycle accident, the Court held that the claimant's misidentification of the intersection where the collision occurred rendered the claim jurisdictionally deficient. The Court in Liberty Mut. Ins. Co. reasoned that "in any intersection collision, the configuration of signs, traffic lights and other indicators and what claimant alleges about them are critical to satisfying § 11(b) of the [Court of Claims] Act" (id.). Because the claim directed defendant to the wrong intersection, defendant could not know what configuration of traffic signals were in place that may have contributed to the accident (see id.). Similarly, in a claim alleging negligent highway design, the identification of a 10-mile roadway was found to be insufficient to comply with Court of Claims Act § 11 (b) (Mutton v State of New York, UID No. 2019-040-015 [Ct Cl, McCarthy, J., Feb. 13, 2019]). Considering these cases, it is apparent to the Court that to determine the sufficiency of the stated accident location, the Court must look to the specific allegations contained in the claim to determine if the alleged location is "sufficient to allow defendant to investigate the claim in a prompt manner and to assess its potential liability" (Deep, supra at 1261).
Here, the claim states that defendant was negligent in failing to have a crosswalk or a properly painted crosswalk; having poor pedestrian signals or failing to have proper pedestrian signals in place; failing to have railings erected within the roadway divider; providing inadequate time to safely cross a major highway; failing to anticipate heavy pedestrian traffic or minors crossing near the Target store located at 3850 Hempstead Turnpike; failing to have adequate and appropriate signage and warnings thereat; and failing to have proper safety devices at that location, among other allegations (Affirmation in Support, Exhibit A).
Guided by the principles stated above, the Court finds that the accident location described in the claim was insufficient to comply with Court of Claims Act § 11 (b). While the verified claim states that the accident occurred "near or about 3850 Hempstead Turnpike" (Affirmation in Support, Exhibit A), the proposed amended claim states that the accident occurred "near or about 3767 Hempstead Turnpike" (id., Exhibit E). Moreover, the verified claim states that the accident occurred at the intersection of Hempstead Turnpike and Berger Avenue, while the proposed amended claim states that the accident took place at the intersection of Hempstead Turnpike and an unnamed cross street connecting the parking lots between 3767 Hempstead Turnpike and 3850 Hempstead Turnpike. Given the nature of the claim and the allegations contained therein, the Court finds that the location description in the verified claim does not comply with Court of Claims Act § 11 (b). Claimants allege that defendant was negligent in failing to have a crosswalk and failing to erect proper signage or railings at the roadway divider and intersection where the decedent attempted to cross Hempstead Turnpike, among other allegations sounding in negligent highway design (id., Exhibits A, E). In order to investigate these claims to determine its potential liability, defendant would need to know the precise location and intersection where the accident occurred. Because the verified claim identifies an address and intersection that is.2 miles from the actual address and intersection where the accident occurred, defendant could not know whether its negligence caused or contributed to the decedent's accident. Therefore, the claim was not "sufficient to allow defendant to investigate the claim in a prompt manner and to assess its potential liability" (Deep v State of New York, 56 A.D.3d at 1261). Accordingly, the claim is jurisdictionally defective and must be dismissed.
Although defendant did not move to dismiss the claim, the Court notes that it may dismiss a claim sua sponte where the Court lacks subject matter jurisdiction over the claim (Scotto v State of New York, UID No. 2021-032-044 [Ct Cl, Hard, J., May 3, 2021]).
Turning then to claimants' late claim application, the Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 A.D.2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 [6]). These factors are: (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 state was substantially prejudiced; (5) whether the movant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 [6]). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 N.Y.2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimants' application (Savino v State of New York, 199 A.D.2d 254 [2d Dept 1993]; Prusack v State of New York, 117 A.D.2d 729 [2d Dept 1986]).
Before addressing the six statutory factors, the Court must determine whether claimants' alleged causes of action are timely under CPLR Article 2 (Court of Claims Act § 10 [6]). The negligence claims accrued on June 30, 2019, and the wrongful death claim accrued on September 12, 2019-the day that claimants were appointed as co-administrators of the decedent's estate (Court of Claims Act § 10 [2]). The negligence causes of action are governed by the three-year statute of limitations set forth in CPLR 214, and the wrongful death cause of action is subject to a two year statute of limitation (EPTL § 5-4.1 [1]).
Although a statute of limitation for a wrongful death cause of action is not specifically contained in the CPLR, CPLR 201 states that "an action... must be commenced within the time specified in this article unless a different time is prescribed by law." EPTL § 5-4.1 (1) states that wrongful death causes of action must be commenced within two years after the decedent's death.
On March 20, 2020, in response to the coronavirus public health emergency, former Governor Andrew M. Cuomo issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8] [emphasis added]). That directive was extended through successive Executive Orders, with the final extension through and including "November 3, 2020, and after such date any such time limit will no longer be tolled" (Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67]). Accordingly, claimants' time to file a late claim application was tolled on the dates that the alleged causes of action accrued. At the time that former Governor Cuomo's directive was issued, claimants had 832 days remaining to file a late claim application for the negligence causes of action, and 906 days remaining to file a late claim application for the wrongful death cause of action (see Brash v Richards, 195 A.D.3d 582 [2d Dept 2021]). The statute of limitations began running again on November 4, 2020, and claimants' time to file and serve the instant motion expires on February 14, 2023 for the negligence causes of action and February 14, 2022 for the wrongful death cause of action. As claimants filed and served the instant late claim application on June 30, 2021, it is timely under CPLR 214 (see Court of Claims Act § 10 [6]).
Turning then to the first factor in the Court's late claim analysis, claimants state that the failure to timely file a claim was due to their reliance on the police accident report and the amended report issued after the decedent's death, which both stated the incorrect accident location (Affirmation in Support, Exhibits C, D). After claimants' attorneys diligently reviewed the police report, in conjunction with the photographs of the accident scene and witness reports, they identified the exact location of the accident (id., ¶¶ 46-47). Of course, here there is the unique circumstance that the decedent was not available to describe where the accident occurred. Therefore, this factor weighs in claimants' favor.
The next three factors-defendant's notice of the issues, opportunity to investigate, and prejudice-are interrelated and therefore frequently considered together. Claimants' argue that defendant had notice of the issues and opportunity to investigate the claim because claimants timely filed and served a claim within 90 days of incident, although that claim stated the incorrect accident location. Because claimants served and filed that claim within 90 days of the incident, they argue that defendant would not be prejudiced if the Court granted the late claim application. Defendant argues that, because claimants stated the incorrect accident location in their claim, it did not have notice of the issues or an opportunity to investigate the claim. Moreover, defendant argues that it is not yet clear that it would not be prejudiced because it has not yet been able to investigate the location of the accident, particularly the correct crosswalk utilized by decedent. The Court finds that, given claimants' failure to identify the correct location, defendant did not have notice of the issues or an opportunity to investigate the claim (see Hyatt v State of New York, UID No. 2018-054-105 [Ct Cl, W. Rivera, J., Oct. 23, 2018]). These factors therefore do not weigh in claimants' favor. The Court also finds that claimants have not established that defendant would not be prejudiced by their delay in filing the claim with the proper accident location, where, as here, two years have passed since the accident (see Estrada v State of New York, UID No. 2018-029-039 [Ct Cl, Mignano, J., Apr. 19, 2018]). This factor also does not weigh in claimants' favor.
As to alternative remedies, claimants argues that they do not have alternative remedies. A companion action was filed in Supreme Court against Nassau County. However, Nassau County has moved to dismiss the complaint on the ground that it does not own the subject roadway (Affirmation in Support, ¶¶ 59-60). Defendant argues that claimants could bring an action against the driver of the car who struck the decedent.
The Court agrees with defendant that claimants have an alternative remedy against the driver of the vehicle who struck the decedent. However, the adequacy of the remedy is unknown since the limits of the insurance policy of the driver are not stated (see, Torres v State of New York, UID No. 2016-032-160 [Ct Cl, Hard J., December 19, 2016]). Thus, this alternative remedy may only be partial. Furthermore, there may be no other remedy for defective design and maintenance. Accordingly, the Court finds that this factor weighs in neither party's favor (see Epstein v State of New York, 88 A.D.2d 967 [2d Dept, 1982]; Rosenhack v State of New York, 112 Misc.2d 967 [Ct Cl, 1982]).
Turning then to the final factor, in order to establish a meritorious cause of action, claimants must establish that their claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc.3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 [6]; Matter of Santana v New York State Thruway Auth., 92 Misc.2d 1, 11 [Ct Cl 1977]). "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 [claimants] to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [claimants] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc.2d at 11-12).
Defendant argues that claimants have failed to establish the appearance of merit of the proposed claim because they failed to submit an expert affidavit. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc.2d 199, 202 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc.2d at 11-12). While claimants have submitted the police accident reports concerning the accident (Affirmation in Support, Exhibits C, D), these reports do not establish any negligent act committed by defendant that proximately caused the accident (see Langner v State of New York, 65 A.D.3d 780 [3d Dept 2009]). The lay opinion of claimants' counsel averring that defendant was negligent in the design of the accident location is also insufficient to establish that defendant was negligent in the design and construction of the highway for purposes of the instant late claim application (Nyberg v State of New York, 154 Misc.2d at 202). Therefore, the Court finds that claimants have failed to establish the appearance of merit of the proposed claim (see Klingler v State of New York, 213 A.D.2d 378 [2d Dept 1995] [claimant's unsupported opinion that her motor vehicle accident would not have happened if the State had installed a traffic light at the intersection was insufficient to establish the merit of the proposed claim]). The Court notes that claimants are not precluded from filing a second late claim application with proper evidentiary support for the claims of negligent highway design (see, Aronson v State of New York, UID No. 2002-028-075 [Ct Cl, Sise, J. Dec. 27, 2002]).
Upon balancing all of the factors in Court of Claims Act § 10 (6), it is hereby
ORDERED that claim number 133697 is DISMISSED; and it is further
ORDERED that claimants' motion for permission to file and serve a late claim (M-96954) is DENIED without prejudice.
Papers Considered:
1. Notice of Motion, dated June 24, 2021; and Affirmation in Support of Motion, affirmed by Andrea R. Laterza, Esq. on June 24, 2021, with Exhibits A through F annexed thereto.
2. Affirmation in Opposition to Motion to File a Late Claim, affirmed by John L. Belford, IV, AAG on September 14, 2021.
3. Affirmation in Reply, affirmed by Andrea R. Laterza, Esq. on October 4, 2021.