Opinion
# 2015-049-030 Claim No. None Motion No. M-86269
05-20-2015
JAIME BERKELEY v. THE STATE OF NEW YORK
Lurie & Flatow, P.C. By: Jay Flatow, Esq. Eric T. Schneiderman, New York State Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General
Synopsis
The Court denied without prejudice movant's motion for permission to file a late claim, as movant failed to establish an appearance of merit. Movant failed to establish that he has a legally viable, non-frivolous claim of "serious injury" arising out of his automobile accident under Insurance Law § 5102(d).
Case information
| UID: | 2015-049-030 |
| Claimant(s): | JAIME BERKELEY |
| Claimant short name: | BERKELEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-86269 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Lurie & Flatow, P.C. By: Jay Flatow, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 20, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant Jaime Berkeley seeks leave to serve and file a late claim pursuant to Court of Claims Act § 10(6). The motion is supported by the affidavits of counsel and movant, a police accident report, two medical reports, and a proposed claim verified by movant. Defendant State of New York submits the affirmation of an assistant attorney general in opposition.
The proposed claim alleges the following: On October 29, 2014, movant was on the upper level of the Verrazano Narrows Bridge when he was hit in the rear by a vehicle operated by an employee of the New York State Office of General Services, and suffered injuries to his neck, lower back and left knee. The supporting affidavits make clear that at the time of the accident, movant was driving as part of his employment for the New York City Department of Environmental Protection. The police report of the incident states that at the time of the crash, the OGS driver appeared to have been following too closely at an unsafe speed. It also states: "No injuries claimed at scene" (Mot. Ex. A).
According to movant's affidavit, he did not initially intend to file a claim in this Court, since he was entitled to workers' compensation and did not believe his injuries were serious (Berkeley Aff. ¶ 6). However, after extensive physical therapy did not improve his left knee, he went for an MRI, which revealed he had suffered a "tear of the posterior horn of the lateral meniscus," and was advised following consultation with an orthopedic surgeon on January 21, 2015 that he would need surgery to repair the tear (id.). He then contacted counsel, who advised him that the 90-day filing period for the Court of Claims had expired, and he would need to make the present motion. He acknowledges that he has a partial remedy for his injuries via workers' compensation, but notes that it will not provide him with complete relief (id. ¶ 7).
The medical records appended to the motion consist of a report on an MRI on movant's left knee prepared by Dr. Gideon Hedrych based on an examination that took place December 23, 2014, and a follow-up evaluation by Dr. Hedrych dated January 9, 2015, prepared in connection with Berkeley's workers' compensation case. The former states that movant had complained of "pain and swelling in [the] left knee," and the doctor recorded his impression that movant has suffered an "instrasubstance tear" of the "lateral meniscus," and "mild joint effusion" (Mot. Ex. D). In the latter, Dr. Hedrych reported that movant reported daily "[n]eck pain and stiffness" radiating to the shoulder and arm; daily back pain and stiffness; and persistent left knee pain, which increased when ascending and descending stairs (id. Ex. E). The evaluation also indicated that Berkeley had returned to his job on November 10, 2014, after having been away from his work since October 30th.
The document bears a WCB (i.e. Workers' Compensation Board) number, and a finding as to the percentage of his "partial" disability - a term used in connection with a workers' compensation case.
Dr. Hedrych's report also included a series of restrictions on movant, stating that he could not do "repetitive or sustained" bending or twisting of the torso, climbing up or down stairs, kneeling, squatting, crawling, or prolonged walking (id.). Dr. Hedrych also made various observations, including that movant had certain limitations on his full range of motion, decreased sensation in particular areas, tenderness to the left knee, "derangement" to sections of the spine and left knee, and a torn lateral meniscus (id.). The doctor recommended physical therapy three times per week, pain killers and possible surgery (id.). According to the movant's affidavit, following a more recent consultation with the orthopedic surgeon on January 21, 2015, he was told the surgeon had requested authorization to perform surgery on February 16, 2015 (Berkeley Aff. ¶ 6).
The State asserts, in its affirmation in opposition, that movant (1) failed to state a reasonable excuse for late filing since he acknowledges receiving physical therapy for his injuries in the wake of the accident; (2) has not established a causal relationship between the accident and his injuries, which must be shown through expert testimony; and (3) does not make a threshold showing of serious injury as defined by Insurance Law § 5102(d).
Discussion
Berkeley submitted this motion within the limitations period for a negligence claim, and I therefore have jurisdiction to grant the application under section 10(6). In determining whether such relief is appropriate, I must consider the factors listed in the statute, whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the movant has any other available remedy. (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]).
In regard to the reason for the delay, movant asserts that he was not initially aware of the severity of his injuries.
To bring suit for personal injuries arising out of an automobile accident, movant must show that he has suffered a "serious injury" as defined by statute (see Ins Law § 5104[a]). Thus, a movant may not know in the wake of a car accident whether the harm he sustained is of sufficient gravity to support a viable claim until after the 90-day period for filing has elapsed. Where such is the case, and the movant therefore lacks information on whether he may commence a non-frivolous lawsuit, he may have an acceptable excuse for missing the Court of Claims Act deadline (see Merkle v State of New York, UID No. 2012-028-537 [Ct Cl, Sise, P.J., Aug. 21, 2012]). The problem in this case, however, is that the doctor's reports upon which movant himself relies to show the severity of his injuries were prepared prior to the expiration of the statutory time period. While Berkeley contends that in the interim he needed to consult with an attorney, the record before me nonetheless does not show that movant lacked the information necessary to decide on whether to file suit within the requisite time frame. He therefore has not shown a valid excuse for late filing, and this factor therefore weighs against granting the motion.
The most recent such evaluation is dated January 9, 2015, more than two weeks before the 90-day period expired on January 27, 2015.
As discussed below, it is not clear if movant had sufficient grounds at the time of the filing of his motion to assert that he suffered a "serious injury" as required to bring this action. In any case, the key point is that such information as he has presented on this motion in regard to his injuries was in his possession in advance of the statutory deadline.
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Defendant does not oppose the application with respect to the factors of notice, opportunity, and prejudice. These factors are therefore deemed to weigh in movant's favor (see Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A], 2006 NY Slip Op 51775[U], at *2 [Ct Cl, 2006] [defendant's failure to address certain section 10(6) factors "entitles the court to presume that they weigh in favor of granting the motion"]; Fine v State of New York, 10 Misc 3d 1075[A], 2005 NY Slip Op 52240[U] at *4 [Ct Cl 2005] [late claim factors not opposed by the defendant are "presumed to weigh in Claimant's favor"]). Indeed, the State cannot claim prejudice and lack of notice when "an employee of the State was not only present at the accident scene but was involved in the collision itself " (Wolf v State of New York, 140 AD2d 692, 693 [2d Dept 1988]). Moreover, the motion was brought within a week of the elapsing of the 90-day period for filing and service.
In regard to an alternative remedy, movant acknowledges that he can secure some relief through the workers' compensation system, albeit only partial (Berkeley Aff. ¶ 7). In addition, he could sue the driver individually in Supreme Court (see Preciado v State of New York, UID No. 2008-029-022 [Ct Cl, Mignano, J., Apr. 25, 2008] ["movant has an adequate and sufficient alternate remedy in the form of an action against the State driver"]). This factor, therefore, militates against movant's application.
The balancing comes down, then, to the "most important" factor: the appearance of merit (see Matter of Professional Charter Servs. v State of New York, 166 Misc 2d 306, 308 [Ct Cl 1995]). For a claim to have an appearance of merit, two factors must be met: (1) the proposed claim "must not be patently groundless, frivolous, or legally defective," and (2) the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable 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]).
Defendant presents two arguments as to why Berkeley has failed to meet this test: First, he has not shown through expert testimony that the accident was the cause of his reported injuries. Second, he has not presented evidence demonstrating that he has suffered a serious injury as necessary to recover for personal injury in a case arising out of an automobile accident.
I find the first argument to be without merit. One of the doctor's evaluations submitted by movant indicates that he began to feel enough pain the day after the accident that he could not return to work. Moreover, Berkeley attests in his own affidavit that the injuries from which he currently suffers came about due to the accident (Berkeley Aff. ¶ 6). While Berkeley has not presented expert testimony in this regard, as a general rule the assertion that a physical trauma caused injury that immediately resulted need not be based on expert proof (see Ingleston v Francis, 206 AD2d 745, 746 [3d Dept 1994] [no expert needed to prove swelling in thigh resulted from blow received there during automobile accident] O'Neill v Pelusio, 65 AD2d 914, 914 [4th Dept 1978] [no expert needed to show blow to eye resulted in "ruptured globe"]). Indeed, while various decisions require expert testimony to show causation on a section 10(6) motion in a medical malpractice case, there is no such rule in the case of injury caused by physical trauma (see e.g. Benedit v State of New York, UID No. 2011-016-058 [Ct Cl, Marin, J., Dec. 12, 2011] [granting late claim motion based on injuries suffered in crash with State driver; no expert testimony presented]; Ayotte v State of New York, UID No. 2011-032-024 [Ct Cl, Hard, J., June 30, 2011] [same]). Whether or not movant may ultimately need an expert to establish that particular injuries were the result of the accident, the present submission is adequate to show for purposes of this motion he suffered physical harm due to the crash.
The State's second argument, however - that the movant has failed to show that he suffered a "serious injury" - presents a more significant challenge.
A serious injury is defined as: "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" (Insurance Law § 5102[d]).
Movant does not identify which of these categories of serious injuries he is claiming, either in his proposed claim or anywhere else in his papers. While his submission indicates that he is restricted in various activities, it gives no indication as to the length of time he has suffered such restrictions, or how they have impacted his life functions or daily activities. Moreover, much of this information is not set forth in his affidavit, but in his doctor's repetition of statements that Berkeley made to him. This unsworn hearsay is not an adequate evidentiary basis to sustain a claim of serious injury (see Hoover v State of New York, UID No. 2009-039-145 [Ct Cl, Ferreira, J., Sept. 30, 2009] [medical documents containing "subjective complaints of pain" insufficient to support allegation of serious injury in late claim motion]). In any case, I cannot guess at the definition of serious injury on which movant relies, and then cobble together the evidence to support it. It is movant's task to make a showing in this regard. Since he has not done so, he has failed to demonstrate for purposes of this motion that he has a legally viable, non-frivolous claim of "serious injury" arising out of his automobile accident. As a result, his present motion does not establish the appearance of merit (see Richards v State of New York, UID No. 2006-036-504 [Ct Cl, Schweitzer, J., Mar. 27, 2006] [late claim lacks appearance of merit, despite submission of MRI reports and physician affirmation detailing disk herniations, since "there is nothing before the court from which it could be concluded that movant suffered a serious injury in the subject accident as required by Insurance Law § 5102(d)"]; Matter of Edwards v State of New York, 119 Misc 2d 355, 356 [Ct Cl 1983] [late claim motion denied when "there is no way to determine from the papers before us whether the threshold requirements for a cause of action under the No-Fault Law have been met"]).
In light of the foregoing, Motion No. M-86269 is denied without prejudice to movant filing a new application, within the applicable statute of limitations period, supported by proper and sufficient papers.
May 20, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers Considered: 1. Movant's Notice of Motion, Affidavit and annexed Exhibits. 2. Defendant's Affirmation in Opposition.