Opinion
# 2011-016-058 Motion No. M-80349
12-12-2011
BENEDIT v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2011-016-058 Claimant(s): LORRAINE BENEDIT Claimant short BENEDIT name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK The caption has been amended to reflect that: (1) with regard Footnote to the acts and omissions of the New York State Office of (defendant Mental Retardation and Developmental Disabilities, the sole name) : properly named defendant is the State of New York; and (2) the Court of Claims has no jurisdiction over individuals such as Al-Badani Yahya. Third-party claimant(s): Third-party defendant(s): Claim number None (s): Motion number M-80349 (s): Cross-motion number(s): Judge: Alan C. Marin Claimant's Tiger & Daguanno, L.L.P. attorney: By: James E. Daguanno, Esq. Defendant's Eric T. Schneiderman, Attorney General attorney: By: Cheryl M. Rameau, AAG Third-party defendant's attorney: Signature date: December 12, 2011 City: New York Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
On November 26, 2008, claimant Lorraine Benedit filed a claim which was assigned claim no. 116127. It alleged that on September 5, 2008, at the intersection of Buffalo Avenue and Eastern Parkway in Brooklyn, Ms. Benedit's automobile was struck by an automobile owned and operated by the New York State Office of Mental Retardation and Developmental Disabilities. The claim, which alleged both personal injury and property damage was dismissed by this Court in a Decision and Order dated August 10, 2009 on the ground that claimant had failed to serve the claim on defendant as required by §11 of the Court of Claims Act (the "Act"). Claimant now moves for permission to file a late claim pursuant to §10.6 of the Act.
In order to determine this motion, the Act sets forth six factors which are to be weighed: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable; and (6) the claim appears to be meritorious.
See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
The first three factors - whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Here, a state employee was involved in the accident and thus had contemporaneous notice thereof. Claimant also annexes a copy of a September 19, 2008 letter to her from Cool Risk Management Services, the "Claims Administrator for the State of New York Fleet," referring to Ms. Benedit's claim. Defendant makes no argument with respect to these three factors and I find that they have been satisfied.
As to an alternate remedy, claimant could sue the driver in Supreme Court. With regard to excuse, claimant states that it was not known "that it was necessary to serve the [claim] upon the Attorney General of New York." This is not a valid excuse for the purposes of the Act. See, e.g., Matter of E.K. v State of New York, 235 AD2d 540 (2d Dept 1997), lv denied, 89 NY2d 815 (1997).
Finally, it must be determined whether the proposed claim appears meritorious. As set forth above, the proposed claim alleges both personal injury and property damage. With respect to personal injury, Insurance Law §5104(a) provides in relevant part that, "there shall be no right of recovery for non-economic loss, except in the case of a serious injury . . ." in personal injury actions "arising out of negligence in the use or operation of a motor vehicle . . . " Insurance Law §5102(d) defines "serious injury" as:
Claimant entitles her exhibit C proposed claim a "Notice of Claim"; as the Act provides only for notices of intention and claims, the correct tile is "Claim."
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
The claim does not state that claimant suffered serious injury. With respect to her injuries, it provides only that claimant suffered "severe personal injuries," referring to her "neck, back, both knees, both ankles and both shoulders, as well as . . . other portions of her body . . ." In Benedit's motion papers, neither she in her affidavit nor her attorney in his affirmation mention the nature of her injuries. Moreover, despite the fact that defendant raised the issue of serious injury in its opposition papers, claimant failed to submit any reply papers. In short, it is not possible to determine on this motion whether claimant suffered serious injury as defined by the Insurance Law.
It is well established that on a late claim motion, "without proof that Movant sustained a serious injury as defined by the Insurance Law, this Court can not conclude that there is reasonable cause to believe that a meritorious cause of action exists, and it would be an abuse of this Court's discretion to grant Movant's motion for permission to late file and serve a claim . . ." Crawford v State of New York, Ct Cl, June 18, 2007, Motion No. M-73291, UID #2007-037-027, Moriarty, J.), citing, Richards v State of New York, Ct Cl, March 27, 2006, Motion No. M-70768, UID #2006-036-504, Schweitzer, J.; and Bohl v State of New York, Ct Cl, October 14, 2005 (Motion No. M-70515, UID #2005-015-045, Collins, J.). In view of the foregoing, I cannot find that Benedit has demonstrated the appearance of merit with respect to her personal injury claim.
With regard to damage to her vehicle, claimant states in her affidavit that at the time defendant's vehicle collied with hers, "[she] had a green light as [she] proceeded through the intersection of Buffalo Avenue and Eastern Parkway and the NYS vehicle had a right light and caused the accident. In addition, the police report is incorrect when it says that the New York State vehicle had its 'lights and sirens on'. The driver put his lights on after the accident occurred." See ¶4 of the September 2, 2011 affidavit of Lorraine Benedit, annexed to her motion papers as Exhibit F. In its opposition papers, defendant does not address the facts of the collision. I find that for the purposes of this motion, with respect to her property damage claim, Benedit meets the standard for merit set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11 (Ct Cl 1977), that: (i) the claim "must not be patently groundless, frivolous, or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." See also Sands v State of New York, 49 AD3d 444 (1st Dept 2008).
In view of the foregoing, having reviewed the submissions, IT IS ORDERED that motion no. M-80349 be granted only to the extent that it alleges a claim for property damage, and shall be denied to the extent that it alleges a claim for personal injury. IT IS FURTHER ORDERED that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file the document annexed as exhibit C to her motion papers, entitling it "Claim," naming only the State of New York as a defendant, and deleting any references to a claim for personal injuries, in compliance with §§11 and 11-a of the Court of Claims Act.
The following were reviewed: claimant's "Notice of Motion to File Late Notice of Claim" with affirmation in support and exhibits A through F; and defendant's affirmation in opposition.
December 12, 2011
New York, New York
Alan C. Marin
Judge of the Court of Claims