Opinion
# 2017-040-127 Claim No. 127477 Motion No. M-90623
09-20-2017
In the Matter of the Claim of BRYON S. COMBELLACK v. THE STATE OF NEW YORK
Peter J. DiGiorgio, Jr., Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG Peter J. DiGiorgio, Jr., Esq.
Synopsis
Claimant's Motion: (1) to dismiss affirmative defenses denied; (2) to amend the Notice of Intention denied; (3) to serve and file a Claim late pursuant to CCA § 10(6) granted.
Case information
| UID: | 2017-040-127 |
| Claimant(s): | In the Matter of the Claim of BRYON S. COMBELLACK |
| Claimant short name: | COMBELLACK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127477 |
| Motion number(s): | M-90623 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Peter J. DiGiorgio, Jr., Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | September 20, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's motion: (1) pursuant to CPLR 3211(b) for an order to dismiss the First, and Eighth through Twelfth, affirmative defenses in Defendant's Answer to the Claim is denied; (2) to file a Claim late pursuant to Court of Claims Act § 10(6) is granted; and (3) to amend the Notice of Intention is denied.
The Claim, which was filed with the office of the Clerk of the Court on February 8, 2016 alleges that, on March 10, 2015, Claimant was driving his vehicle at the Route 49 East Ramp and I 790 West Ramp in the City of Utica, New York. The Claim further asserts: that the State allowed and/or caused snow to be plowed around and remain, adjacent to and on top of certain attenuator barrels located at the merger of the Route 49 West and Route 790 East ramps so as to create a dangerous condition; that, upon information and belief, the State caused the condition to exist or had actual and constructive knowledge of the dangerous condition which may have been caused by other entities. The dangerous condition created or allowed to remain was the risk that the attenuator barrels, with the accumulation of snow and ice, would act as a ramp for any vehicle which struck them, thereby causing the same to become airborne and travel over the concrete barrier at the merger point. The Claim further asserts that, on March 10, 2015, Claimant's car struck the packed snow and ice around the barrels, causing the vehicle to become airborne and go over the bridge, resulting in an impact and crash off the bridge from a vertical height of approximately 29 feet. Prior to filing and serving the Claim, Claimant served upon the Attorney General a Notice of Intention to File a Claim on June 1, 2015.
The State's Verified Answer to the Claim, which was filed in the office of the Clerk of the Court on March 22, 2016, admits the allegations contained in paragraph 8 of the Claim concerning the service of a Notice of Intention to File a Claim upon the Attorney General, and denies all the other allegations in the Claim. The State also asserts 18 affirmative defenses in its Answer. Claimant moves to dismiss affirmative defenses 1, and 8 through 12.
While Claimant's Notice of Motion does not include a prayer to dismiss Defendant's first affirmative defense, his counsel does (see Supporting Affirmation of Peter J. DiGiorgio, Jr., Esq. [hereinafter, "DiGiorgio Affirmation"], ¶¶ 7, 9). The State, likewise, understood the Motion to be seeking dismissal of its first affirmative defense (see Affirmation in Opposition of Assistant Attorney General Sean B. Virkler, Esq. [hereinafter, "Virkler Affirmation"], ¶ 8).
A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications and Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Moreover, a movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Services, LLC, 34 AD3d 559, 559 [2d Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], affd 60 AD3d 1243, supra).
The State's first affirmative defense asserts that the Claim fails to state a cause of actdion against Defendant upon which relief may be granted. If proved, this defense would result in the Claim's dismissal. Accordingly, this defense must stand pending a determination of the issue.
The State's eighth affirmative defense asserts that the Notice of Intention is insufficient to extend the time for filing and serving the Claim in that it fails to comply with Court of Claims Act § 11 by failing to state the specific time of accrual of the cause of action and, thus, there is no proper Claim over which the Court has jurisdiction. If proved, this defense would result in the Claim's dismissal. Accordingly, this defense also must stand pending a determination of the issue.
The State's ninth affirmative defense asserts that the Notice of Intention is a nullity and did not serve to extend the time for filing and serving a Claim pursuant to Court of Claims Act § 10(3). If proved, this defense would result in the Claim's dismissal. Accordingly, this defense also must stand pending a determination of the issue.
The State's tenth affirmative defense asserts that the Court lacks subject matter jurisdiction over the Claim as it was not filed with the Court within 90 days of accrual, or where a proper Notice of Intention to File a Claim has been timely and properly served, within two years of accrual, as required by Court of Claims Act §§ 10(3), 10(3-b) and 11(a). If proved, this defense would result in the Claim's dismissal. Accordingly, this defense also must stand pending a determination of the issue.
The State's eleventh affirmative defense asserts that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over Defendant as the Claim is untimely in that neither a Claim nor a proper Notice of Intention was served within 90 days of accrual of the Claim as required by Court of Claims Act §§ 10(3), 10(3-b) and 11. Again, if proved, this defense would result in the Claim's dismissal. Accordingly, this defense also must stand pending a determination of the issue.
The State's twelfth affirmative defense asserts that the Claim was not timely brought within the three year Statute of Limitations period. Insofar as it appears that Claimant's cause of action accrued on March 10, 2015, and a Claim has been filed and served, it would appear that this defense lacks merit. However, it is Defendant's assertion that the Claim has not been properly commenced and, thus, has not been properly brought within the applicable Statute of Limitations. If proved, this defense would result in the Claim's dismissal. Accordingly, this defense also must stand pending a determination of the issue.
Thus, the portion of Claimant's Motion to strike the first, and eighth through twelfth, affirmative defenses is denied.
The State has not made a Motion to dismiss the current Claim, however, in the interests of judicial economy, even though Claim No. 127477 remains an open Claim, the Court will consider that portion of Claimant's Motion seeking permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6) prior to the expiration of the underlying Statute of Limitations.
The proposed Claim is attached to the affirmation of Claimant's counsel as Exhibit I. The proposed Claim is similar to Claim No. 127477 discussed above, but includes a statement that the Claim arose on March 10, 2015 between 8:00 p.m. and 11:30 p.m.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts a cause of action for negligence (CPLR § 214[5], a three-year Statute of Limitations). The Court concludes that, based upon the information provided in the proposed Claim, that the cause of action accrued on March 10, 2015, the statute of limitations has not yet expired.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Claimant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Claimant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Claimant argues that the delay in this case was excusable because Claimant did file Claim No. 127477 within the applicable time limits. The Court need not determine whether this is an acceptable excuse, however, because, even if it were deemed inadequate, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together. Defendant does not argue lack of notice, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (see Virkler Affirmation). Those factors, therefore, weigh in Claimant's favor.
The fifth factor to be considered is whether Claimant has another remedy available. It appears that Claimant does not have a possible alternate remedy.
The sixth, final and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Claimant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. 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 Claimant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Claimant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
The proposed Claim asserts a negligence action premised on the State and/or its employees and/or agents allowing and/or causing snow to be plowed around and remain adjacent to and on top of certain attenuator barrels so as to create a dangerous condition. At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of claimants. Based upon the entire record, the Court finds that the proposed Claim has the appearance of merit. Claimant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Claimant's favor. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which were designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra at 1036). Claimant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State as set forth above. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Claimant shall file with the office of the Clerk of the Court his proposed Claim against the State of New York and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his Claim, Claimant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
The portion of Claimant's Motion to amend the Notice of Intention to File a Claim is denied as moot.
September 20, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered on Claimant's Motion to dismiss certain affirmative defenses raised in the State's Answer; for permission to file a late claim; and to amend the Notice of Intention to File a Claim: Papers Numbered Notice of Motion, Affirmation & Exhibits Attached 1 Affirmation in Opposition & Exhibit Attached 2 Reply Affirmation 3 Filed Papers: Claim, Answer