Opinion
# 2020-040-026 Claim No. NONE Motion No. M-94937
05-06-2020
TIMOTHY DODGE AND KAYCIE DODGE, as Parents and Natural Guardians of M.D., an infant v. THE STATE OF NEW YORK
KNYCH & WHRITENOUR, LLC By: Matthew E. Whritenour, Esq. LETITIA JAMES Attorney General of the State of New York By: Christopher J. Kalil, Esq., AAG
Synopsis
Motion for permission to file a Claim late pursuant to CCA § 10(6) granted in part.
Case information
| UID: | 2020-040-026 |
| Claimant(s): | TIMOTHY DODGE AND KAYCIE DODGE, as Parents and Natural Guardians of M.D., an infant |
| Claimant short name: | M.D. |
| Footnote (claimant name) : | The Court amends the caption of the Motion to include only the initials of the minor Movant (see Uniform Rules for the Court of Claims § 206.5[e][i][iii]). |
|---|---|
| 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-94937 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | KNYCH & WHRITENOUR, LLC By: Matthew E. Whritenour, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Christopher J. Kalil, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 6, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of Movants, Timothy Dodge and Kaycie Dodge, as parents and natural guardians of M.D., an Infant, to serve and file a late claim pursuant to Court of Claims Act § 10(6), is granted in part and denied in part as moot.
Movants seek permission to serve and file a late claim. The proposed Claim, attached to the Motion papers as Exhibit E, alleges that the claim arose on July 26, 2017, at approximately 4:00 p.m., at Moffitt Beach Campground, located at 205 Page Street, Speculator, New York 12108, and that the accident was reported to the campground staff (Ex. E, ¶ 4). It is asserted that the Moffitt Beach Campground, including its roadways, are owned, operated and maintained by the State of New York, through the New York State Department of Environmental Conservation (hereinafter, "DEC") (id.¶, 5). It is further alleged that the infant Movant (hereinafter, "M.D.") was injured when she was caused to fall off her bicycle while lawfully and carefully riding her bicycle on a paved roadway in the Moffitt Beach Campground, on the main roadway, approximately 345 feet west of the intersection of the main roadway and Raccoon Alley (id., ¶6). Movants further assert that M.D. was caused to fall off her bicycle due to dangerous and unsafe potholes, cracks, fissures in the pavement, missing pavement, and an improperly maintained section of the roadway, patched with sand and other loose substances, which were not readily observable and constituted a hazard and a trap for bicyclists and pedestrians (id., ¶ 7). The proposed Claim also asserts that Defendant had actual notice of the roadway defects as its employees created and/or exacerbated the hazards present by negligently attempting to remedy the hazards by filling them with sand or other lose substances which only masked the hazards, and there were other prior accidents in and complaints made to the campground (id., ¶ 10). It is also alleged that Defendant had constructive notice of the hazardous condition of the roadway (id., ¶ 11). It is alleged that M.D. suffered injuries to her face, mouth, teeth and head and continues to be treated for the injuries, such that the full extent of her injuries cannot be determined at this time (id., ¶¶ 12, 13). Movants seek recovery for M.D.'s conscious pain and suffering, loss of enjoyment of life, disability and disfigurement, as well as an award for past and future medical and dental expenses for the care received by their daughter, M.D. (id., ¶¶ 15, 16).
Movants label this document a "Notice of Claim." The Court notes that, in Court of Claims' practice, there are two documents, a Notice of Intention to File a Claim and a Claim. There is no "Notice of Claim." The Court considers this document to be a proposed Claim. --------
Court of Claims Act § 10(5) provides "[i]f the [C]laimant shall be under legal disability, the [C]laim may be presented within two years after such disability is removed." CPLR 208 provides that, where a person entitled to commence an action is under a disability because of "infancy" or "insanity" at the time the cause of action accrues, the time for commencement of an action shall, with some limitations not applicable here, be extended by the period of disability (see also Court of Claims Act § 9[9]; Henry v City of New York, 94 NY2d 275, 279-280 [1999]; Boland v State of New York, 30 NY2d 337 [1972]; Weber v State of New York, 267 App Div 325 [1944]). Here, Movant M.D. was 9 years old on the date of the accident (Affidavit of Matthew E. Whritenour, Esq. [hereinafter, "Whritenour Affidavit"], ¶ 8, and Ex. A, [DEC, Bureau of Recreation, Special Incident Report] attached thereto). As a minor, M.D. is under a legal disability as set forth in CPLR 208 and Court of Claims Act § 10(5) and, therefore, the motion as to her cause of action is unnecessary.
In Movants' counsel's affidavit, he states that the proposed Claim "seeks damages only on behalf of the infant [Movant] and does not seek damages on behalf of her parents, the [Movants] in this action" (Whritenour Affidavit, ¶ 10). While the caption of the proposed Claim does not assert an individual cause of action by the parents, as set forth above, the proposed Claim does state Movants "seek an award for past and future medical and dental expenses for [the] care received by their daughter" M.D. (Proposed Claim, ¶ 16).
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). Movants assert that the claim accrued on July 26, 2017. The Court concludes that, based upon the information provided in the proposed Claim, 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]). Movants 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 Movants to persuade the Court to grant their 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. Here, Movants' counsel asserts that a Notice of Intention to File a Claim was served upon the Attorney General on October 18, 2017 (Whritenour Affidavit, ¶ 4, and Ex. B attached thereto). A Claim was subsequently served upon Defendant and the Claim was filed in the Office of the Clerk of the Court on February 20, 2018. By Decision and Order dated July 2, 2019, the Court granted Defendant's Motion to dismiss the Claim on the basis that it failed to meet the specificity requirements of Court of Claims Act § 11(b), as the place where the Claim accrued was not sufficiently detailed in the Notice of Intention and the Claim (M.D. v State of New York, UID No. 2019-040-046 [Ct Cl, McCarthy, J., July 2, 2019]). Movants' counsel asserts that the delay in filing is excusable as Movants attempted to explain the location of the accident as best they could in the Notice of Intention and original Claim (see Movants' Memorandum of Law, p. 10). The Court concludes that Movants' excuse is not reasonable. However, 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. Movants assert that Defendant had notice of the essential facts and an opportunity to investigate as the State had a copy of the "Special Incident Report" prepared by its employee, Susan Dodge (who is M. D.'s grandmother). It is further asserted that Ms. Dodge went to the scene of the accident that day and that the State had an opportunity to investigate the incident by talking to Ms. Dodge, and, thus, Defendant has not been prejudiced by the delay in serving and filing a Claim. Defendant asserts that Movants have not provided an exact location of the incident and that the road where the incident occurred has been repaired post-incident (Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General [hereinafter, "Kalil Affirmation"], ¶¶ 15,16) and, thus, Defendant has been prejudiced.
Defendant does not assert that it did not have knowledge of the incident, only that Movants have not provided an exact location of the accident. In addition, Defendant has failed to establish, by submitting an affidavit from a person with knowledge, that it did not have notice of the essential facts of the case or an opportunity to investigate those facts. In the absence of such information, the Court finds that Defendant has failed to establish that it will be substantially prejudiced by the delay in filing the Claim. Those factors, therefore, weigh in Movants' favor.
The fifth factor to be considered is whether Movants have another remedy available. It appears that Movants do 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 Movants' 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 Movants to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movants to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
Defendant asserts that the proposed Claim lacks the appearance of merit as Movants have failed to sufficiently particularize where the incident occurred and to identify the specific defect as required by Court of Claims Act § 11(b) (Kalil Affirmation, ¶¶ 25-29). At this stage of the proceeding, it should be noted the Court generally takes as true the factual allegations of a Movant. Based upon the entire record, including the proposed Claim, the Court finds that the proposed Claim has the appearance of merit. Movants need only establish the appearance of merit; they need not prove a prima facie case at this stage of the proceedings. The Court also finds that the proposed Claim meets the specificity requirements of Court of Claims Act § 11 (b).
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movants' 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 was 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). Movants have provided sufficient basis for a favorable exercise of this Court's discretion to grant them leave to file a late claim against the State as set forth above. In the interests of judicial economy, it would be more efficient if the proposed Claim also included the cause of action asserted by M.D. Therefore, Movants shall file with the office of the Clerk of the Court their 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 their claim, Movants are 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. Such filing and service of Movants' proposed Claim shall be made within forty-five (45) days of the filing of this Decision and Order, as such date may be affected and extended by the Administrative Order of Acting Presiding Judge Richard E. Sise, dated March 16, 2020, which tolls such time limitation periods, and until such Order expires.
May 6, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read on Movants' application for permission to file a late claim: Papers Numbered Notice of Motion, Affidavit in Support& Exhibits Attached 1 Affirmation in Opposition & ExhibitsAttached 2 Reply Affidavit & Exhibits Attached 3 Movants' Memorandum of Law 4