Opinion
# 2011-029-059 Claim No. 119745 Motion No. M-80511
01-05-2012
DAVILA v. THE STATE OF NEW YORK
Synopsis
Late filing motion arising from automobile accident allegedly caused by State snowplow is granted. Appropriate standard of care will be addressed after full development of the facts and is irrelevant to the requirement that claimant show an appearance of merit to the proposed claim. Case information
UID: 2011-029-059 Claimant(s): SARA GIANAZZA DAVILA Claimant short name: DAVILA Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119745 Motion number(s): M-80511 Cross-motion number(s): Judge: STEPHEN J. MIGNANO Claimant's attorney: SARA GIANAZZA DAVILA, pro se ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: By: Wanda Perez-Maldonado, Assistant Attorney General Third-party defendant's attorney: Signature date: January 5, 2012 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for permission to file a late claim arising out of a January 21, 2011 automobile accident in which her vehicle, stopped at a red light on Route 35 at the intersection with Cherry Street in Somers, was allegedly struck in the rear by a vehicle that had been struck by a snowplow owned by defendant's Department of Transportation and driven by a DOT employee. She seeks damages of $4,559.70, the vehicle's repair costs.
Claimant prepared a Claim and filed it with the Clerk of the Court within the statutory 90-day period but did not serve a copy on the Attorney General until after receiving acknowledgment of the filing from the Clerk's Office containing the instruction to file proof of service upon the Attorney General if such had not already been done. Claimant explains that she was unaware she had to serve the Attorney General and thought that filing with the court within 90 days of accrual was sufficient. By the time claimant served a copy of the claim on the Attorney General, on May 11, 2001, more than 90 days had elapsed since the accident (see Court of Claims Act § 10[3]). Defendant preserved the jurisdictional defense arising out of claimant's late service of the claim in its Answer (see Court of Claims Act § 11[c]) and although defendant has not as of yet decided to move to dismiss the filed claim, should defendant elect to so proceed the motion would have to be granted since late service combined with the appropriate defense being raised and preserved in the answer equates to a lack of personal jurisdiction over the defendant. Notwithstanding defendant's failure to submit a dismissal motion as of yet, claimant anticipates her problem and moves for permission to late file pursuant to Court of Claims Act § 10(6). That statute grants the court the discretion to allow the filing of a late claim upon consideration of all relevant factors, including whether claimant's delay in properly proceeding was excusable, whether defendant had timely notice of and the opportunity to investigate the underlying facts, whether defendant would suffer substantial prejudice should the motion be granted, whether defendant has an alternate remedy and whether the proposed claim has the appearance of merit.
Defendant raises two points in opposition to the motion: that claimant's delay was not excusable and that she has not demonstrated that the proposed claim has the appearance of merit. As to the former contention, the maxim that ignorance of the law is no excuse applies and claimant's honest but legally-insufficient statement that she simply did not know she had to serve the Attorney General cannot weigh in her favor. Nevertheless, the reason for the delay is but one factor to consider and the failure to present a legally-adequate excuse is not determinative (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The court finds the remaining statutory factors weigh strongly in favor of granting the motion.
Initially, the court notes that "[f]acts stated in a motion for leave to file a late claim . . . are deemed true for purpose of [the] motion, when not denied or contradicted in opposing affidavits" (Sessa v State of New York, 88 Misc 2d 454, 458 [1976], affd 63 AD2d 334 [1978], affd 47 NY2d 976 [1979]; see also Cole v State of New York, 64 AD2d 1023, 1024 [1978]).
According to the accident report completed by the investigating state trooper, the driver of defendant's snowplow, Michael Moshier, stated that "the hook that held up the front plow came undone causing the front plow to fall to the ground . . . [and he] was unable to gain control of vehicle causing [it] to go into the right lane striking V-2 which then struck V-3 [claimant]." Defendant does not allege that defendant did not have timely notice of and the timely opportunity to investigate this collision, nor does it contend that it suffered any prejudice from the service of the claim less than a month after expiration of the statutory period, and the court finds that these three factors weigh in favor of granting the motion.The court notes that defendant has not submitted any statement disputing claimant's account of the incident.
"The documentation contained in the record, which includes a police accident report and a New York State Department of Motor Vehicles MV-104 form, provides further support for the conclusion that the State had acquired knowledge of the essential facts giving rise to the claim and that it had an adequate opportunity to conduct an investigation of the incident (see, Matter of Gerzel v City of New York, 117 AD2d 549; Hayden v Incorporated Vil. of Hempstead, 103 AD2d 765; Trakis v City of New York, 92 AD2d 569). This determination is buttressed by the fact that an employee of the State was not only present at the accident scene but was involved in the collision itself (see, Whitehead v Centerville Fire Dist., 90 AD2d 655; Matter of Ziecker v Town of Orchard Park, 70 AD2d 422, affd 51 NY2d 957)." Wolf v State of New York, 140 AD2d 692, 693 [2d Dept 1988] (emphasis supplied).
The standard to be applied when weighing the apparent merit of a proposed claim was articulated shortly after the enactment of Section 10(6) in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [1977]):
"In order for a claim to 'appear to be meritorious': (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists. This formulation is an analysis of the statutory language and is not intended as a substitute therefor. The reasonable cause standard is appropriate in our view because the court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file.(92 Misc 2d 1, 11-12). Since then, Judge Weisberg's analytical framework has been generally accepted by Court of Claims judges and appellate judges.
Defendant's contention that the proposed claim lacks the appearance of merit centers around Vehicle and Traffic Law §1103(b), establishing reckless disregard as opposed to negligence as the standard of care for snowplow operators actually engaged in snow removal operations. The proposed claim asserts that the snowplow was not actually engaged in snow removal at the time of the accident, that the heightened "reckless disregard" standard of care provided by VTL § 1103(b) would not apply to the case should her motion for permission to late file be granted, and that her allegation that her vehicle was struck in the rear by a vehicle that in turn had been struck in the rear by defendant's employee provides a sufficient indication of apparent merit. Claimant argues that the snowplow operator's statement to the trooper that the front blade of the plow unexpectedly fell, causing him to lose control, indicates that he was not plowing at the time and supports the contention that he was not actually engaged in highway work.
Defendant, referencing five decisions in which it was held that the snowplow operator in those cases was actually engaged in work on a highway at the time of the accident, maintains that claimant cannot recover and that the motion should be denied for that reason. Although claimant's argument (referencing the actual facts of this case) is more probative than that of defendant (referencing only the facts of other cases which may or may not be analogous or relevant) it is an issue that need not and should not be resolved at this time, particularly in view of the claimant's exceedingly short delay and the complete and total lack of any prejudice to defendant should the motion be granted. Whether or not the operative facts will justify a finding that the heightened standard of care applies can only be determined after a full explication of those facts and is in fact totally irrelevant to the court's conclusion that claimant, at this point, has demonstrated the appearance of merit within the meaning of the statute; i.e., she has demonstrated that the proposed claim is not patently groundless, frivolous or defective and that there is reasonable cause to believe that a cause of action exists. Defendant's contention, that the proposed claim is without merit as a matter of law, is clearly erroneous.
Accordingly, the court finds that the motion should be, and hereby is, granted. An additional factor, not addressed by either party but raised by the repair bill and the accident report, both of which indicate that the owner of the vehicle was Arthur Davila, Jr., not claimant. While such would not necessarily preclude claimant from alleging that she paid for repairs and she suffered damages (and does not therefore mitigate against granting the current motion), it appears possible that the Claim may be missing a party. That issue is not currently before the court.
As previously noted, defendant has not moved to dismiss the filed Claim, although it appears certain that claimant failed to adequately obtain personal jurisdiction over the defendant, giving rise to a defense that defendant may choose to raise or waive (Court of Claims Act §11 [c]). Claimant's timely and meritorious application for late claim relief pursuant to Section 10(6) sufficiently addresses the jurisdictional infirmity otherwise tainting Claim No. 119745 and the fact that the claim is still pending because defendant has not acted to perfect its jurisdictional objection means that there is no requirement that this claim file be closed and a new claim number be assigned. However, claimant is directed to serve and file an Amended Claim consisting of the proposed claim with two technical defects corrected. The blank: "Claimant was damaged in the amount of $ ____" should be filled in and the verification should be correctly completed, with claimant, not the notary public, completing the verification and signing it in front of a notary. The Amended Claim shall be served on the Attorney General by certified mail, return receipt requested and filed with the Clerk of the Court of Claims within 40 days of the filing of this decision and order.
The Claim elsewhere contains the sentence "Claimant seeks damages in the amount $4,559.70 based on the attached estimate."
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January 5, 2012
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers considered:
Notice of Motion, Affidavit and Exhibit
Affirmation in Opposition and Exhibits