Opinion
# 2013-049-025 Claim No. 120415 Motion No. M-83007
05-23-2013
ESTATE OF JOSE GARCIA, BY HIS ADMINISTRATOR AD PROSEQUENDAM, VICTOR SALINAS v. THE STATE OF NEW YORK and/or NEW YORK STATE DEPARTMENT OF TRANSPORTATION and/or NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES
Synopsis
The Court granted leave to file a late claim with respect to defendant New York State Thruway Authority.
Case information
UID: 2013-049-025 Claimant(s): ESTATE OF JOSE GARCIA, BY HIS ADMINISTRATOR AD PROSEQUENDAM, VICTOR SALINAS Claimant short GARCIA name: Footnote (claimant name) : THE STATE OF NEW YORK and/or NEW YORK STATE DEPARTMENT OF Defendant(s): TRANSPORTATION and/or NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120415 Motion number(s): M-83007 Cross-motion number(s): Judge: DAVID A. WEINSTEIN Claimant's Law Offices of Rosemarie Arnold attorney: By: Paige R. Butler, Esq. Defendant's Eric T. Schneiderman, New York State Attorney General attorney: By: Cheryl M. Rameau, Assistant Attorney General Third-party defendant's attorney: Signature date: May 23, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Estate of Jose Garcia ("decedent"), by its administrator Victor Salinas, moves this Court for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6) against the New York State Thruway Authority ("Thruway").
Claimant commenced this action against defendants State of New York, the New York State Department of Transportation ("DOT") "and/or" the New York State Department of Motor Vehicles ("DMV") by verified claim filed October 3, 2011. The claim alleges that on March 12, 2011, decedent was fatally injured when he was a passenger in a motor vehicle involved in a collision at or near exit 15 of Interstate 95 in the Bronx, New York (the "March 12 accident"). The claim asserts that the accident was caused, in whole or in part, by various instances of negligence by defendants. Although the claim does not so state, the parties' submissions on this motion make clear that this case is one of fourteen filed in the Court of Claims that arise out of the crash of a bus run by World Wide Travel of Greater New York, Ltd. ("World Wide"), at or about marker 3.2 on Interstate 95.
The State filed a verified answer alleging various defenses, including that the accident location is not owned, operated, maintained or controlled by defendant State of New York. According to the affirmation of claimant's counsel, as the action proceeded she learned additional information that led to the filing of the present application. Specifically, claimant learned from the criminal trial of the World Wide bus driver information regarding the bus' collision with a support pole for an overhead sign (Aff. in Supp. ¶ 13). In addition, counsel avers that at a court conference on December 19, 2012, she discovered that she would need to file a claim against the New York State Thruway Authority, although she does not specify the information that underlay this conclusion (id. ¶ 15).
Claimant now seeks leave of the Court, pursuant to section 10(6), to file a late claim against the Thruway, essentially adding it as a defendant in this action. The proposed amended claim would make various other changes, including adding allegations that defendants were negligent in the design and placement of a support pole for an overhead sign.
Claimant's application is supported by a proposed verified amended claim, an affirmation by counsel, and several documents. The proposed amended claim, signed by counsel, states that decedent's fatal injuries were caused in whole or in part by defendants' (i.e., the State's and Thruway's) negligence in carrying out a long list of actions (and in various alleged failures to act), including "the ownership, . . . design, . . . reconstruction, failure to warn and/or repair of the . . . roadway and/or curb, and/or removal of curb and/or subject sign and/or subject support pole and/or structure, which the subject bus collided with . . . " (Proposed Amended Claim ¶ 5). The motion submission also includes the State's verified answer and discovery demands, and a supplemental response by the Thruway to the second notice to admit served in another action arising out of the March 12 accident (Yao v State of New York, et al., Claim No. 121024]) and signed by an assistant counsel at the Thruway. In that document, Thruway stated that in a 1984 project, a "mountable curb" was installed, as were entirely new sign structures, including "supporting posts" (Aff. in Supp., Ex. C).
The proposed amended claim sets forth all these allegations as to "defendants" generally, without distinction between the State and Thruway. Thus, certain allegations that appear to apply specifically to the State - such as the failure to "maintain a system to ensure that driving-related restrictions imposed on individuals in the criminal justice system are coordinated with all agencies" - are made against all defendants.
Pursuant to the preliminary conference order entered in each of the cases arising out of the March 12 accident, this discovery response was shared with all claimants in those cases, including Garcia.
It is difficult to fully understand the import of defendant's response to the notice to admit, since claimant appends the first set of notices to admit in Yao, along with the Thruway's supplemental response to the second set of such notices. Thus, the record on this motion includes the Thruway's answer, but not the notice to which it responds. Nonetheless, since the response contains specific factual averments, those will be considered in assessing this motion.
In response, Thruway has filed an affirmation in opposition by Assistant Attorney General Cheryl Rameau, which argues that claimant has failed to show a valid excuse for the late filing and has an alternative remedy via an action in Supreme Court, and that the proposed amended claim lacks the appearance of merit.
Discussion
The late claim application at issue was filed within the relevant statute of limitations, and the Court therefore has jurisdiction to grant relief under section 10(6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those factors are 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 claimant has any other available remedy. The statutory factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling (id.).
In regard to an excuse for delay, the affirmation of claimant's counsel states that she first learned of the need to name Thruway as a defendant at a December 2012 court conference (Aff. in Supp. ¶ 15), but it does not indicate why she was unable to discover that Thruway was an appropriate defendant by the time the action was filed. In any case, claimant's confusion as to which entity to sue is generally not a valid excuse for purposes of section 10 (6) relief (see Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]). This factor therefore weighs against claimant.
Whether Thruway had notice of the essential facts, had an opportunity to investigate, and would be prejudiced by the granting of this application are closely related and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). I find that defendant had ample time and opportunity to explore the facts of this case - and defendant does not argue otherwise. The March 12 accident was well-publicized, and the subject of a federal investigation (see Aff. in Supp. ¶ 22). Moreover, at least one other passenger on the bus served a Notice of Intention to File a Claim within the statutory 90-day period upon both the Thruway Authority and the State of New York, clearly placing them on notice of the need to investigate (e.g. Yao v State of New York and the New York State Thruway Authority, Claim No. 121024; see also Marciano v State of New York, UID No. 2012-049-003 [Ct Cl, Weinstein, J., Feb. 7, 2012] ["a claim has been timely filed against the State by another passenger in one of the vehicles involved in the same accident, which should have provided ample notice of the accident to the State"]).
This and other decisions of the Court of Claims may be found on the Court's website: www.nycourts.gov/courts/nyscourtofclaims/.
Indeed, the absence of prejudice in this case is particularly pronounced, since this motion does not involve the submission of a new claim or new allegations, but instead would add a defendant, represented by the same counsel as one timely served (cf. Thomsen v Suffolk County Police Dept., 50 AD3d 1015, 1018 [2d Dept 2008] [allowing amendment to add county as defendant in suit against county police department; "no prejudice can be asserted by the County, whose County Attorney has vigorously defended this action from its inception"]). Under these circumstances, these factors weigh heavily in favor of claimant.
As to the appearance of merit, that factor is assessed under the twofold test set forth in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To meet this test: (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" (id. at 11). In applying this standard, "the court looks at all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of 'apparent merit' and is not confined to the text of the proposed claim itself" (Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A] [Ct Cl 2006]).
In its response, defendant argues that claimant has the burden to show the claim has the appearance of merit (see Aff. in Opp. ¶ 7, citing Ribnikar v State of New York, UID No. 2002-018-189 [Ct Cl, Fitzpatrick, J., Nov. 22, 2002]). Defendant asserts that claimant has failed to meet that burden, since the proposed claim alleges only that the bus made contact with a sign support post, without sufficiently alleging how this was the result of Thruway's negligence (id.).
On the basis of the submissions before me, though, I cannot say the claim is frivolous, patently groundless or legally defective. It gives the Thruway notice that the decedent was killed in the March 12 accident, and presents various allegations (albeit put in very general terms) as to how the accident was caused by the Thruway's negligence, satisfying the first Santanaprong. At the same time, claimant has failed to present any cognizable evidence to show "reasonable cause to believe that a valid cause of action exists." Nothing in claimant's submission provides any evidentiary support for its theories of negligence. The only such support is an affirmation and verified claim signed by an attorney without personal knowledge, and a response to a notice to admit that does not set forth any evidence of negligence (compare Yang v State of New York, UID No. 2013-049-010 [Ct Cl, Weinstein, J., Feb. 22, 2013] [claimant adequately showed appearance of merit in late claim against Thruway arising out of March 12 accident, as allegations of negligence was sufficiently supported by an appended National Transportation Safety Board report finding "that the guardrail design contributed to the severity of the accident"). Since claimant has not met the second Santana prong, this factor weighs narrowly against the present application.
The Appellate Division has noted that a late claim application may be denied solely because it lacks the appearance of merit, without regard to the other factors, as it would "be futile to permit a defective claim to be filed" (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). That concern does not apply here, since the claim meets the first Santana prong (i.e., it is not groundless, frivolous or legally defective).
As to an alternative remedy, Thruway notes that claimant has already filed a Supreme Court action against the driver and owner of the bus company (Aff. in Opp. ¶ 8; see also Aff. in Supp. ¶ 4 [there "are currently cases stemming from this incident pending in the New York Supreme Court, County of Kings as well as the Tribal Court"]). Claimant states, however, that it has no other remedy against Thruway (Aff. in Supp. ¶ 22). Indeed, claimant's proffered basis for liability against the defendant it seeks to add (relating to its alleged negligence in the construction and maintenance of the road and various structures adjacent thereto) is different from that asserted against the parties sued in Supreme Court (the driver and bus company), and the remedy provided by the Supreme Court action may only be a partial one (see Marciano, supra [claimant has only a partial remedy in Supreme Court action where "it is possible that claimant could have a meritorious claim of negligence [against the State in the Court of Claims] action, but not against the driver in its Supreme Court case"]). Under these circumstances, the possibility of recovery in another forum provides only limited support for defendant's position (see Archambault v State of New York, UID No. 2010-042-535 [Ct Cl, Siegel, J., Dec. 21, 2010] [where alternative remedy does not address negligent conduct by State, it is "incomplete" and weighs in favor of neither party]; see also Matter of Smith v State of New York, 63 AD3d 1524 [4th Dept 2009] [granting late claim application, notwithstanding presence of partial remedy]; Matter of Lockwood v State of New York, 267 AD2d 832 [3d Dept 1999] [same]).
Finally, since the list of factors set forth in section 10(6) is not intended to be exhaustive, I note another, that tips the overall balance in claimant's favor. Unlike most late claim motions, this one does not seek to initiate a new claim, but merely to add a defendant to one commenced seven months ago, in which discovery is ongoing. Moreover, as noted above, the same attorney that would represent the Thruway is already representing the State in its defense. These factors weigh significantly in favor of claimant's application.
Indeed, although this motion is brought under Court of Claims Act § 10(6), it is for all intents and purposes an application to amend the claim to add a party defendant. Such a motion may be brought under CPLR 3025, even after the relevant limitations period has expired, provided the claim "relates back" to the original cause of action
A claim against a new party "relates back" to a previously filed claim for purposes of CPLR 3025 when (1) "both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that the new party will not be prejudiced in maintaining its defense on the merits, and (3) the new party knew or should have known that, but for a mistake by the plaintiffs as to the identity of the proper parties, the action would have been brought against that party as well" (Thomsen, 50 AD3d at 1018; see also Buran v Coupal, 87 NY2d 173, 181 [1995] [plaintiff seeking to add party as defendant need not show initial omission of defendant was "excusable"]).
- an element found met where the same counsel represents a government entity already named as a defendant, and another such entity the plaintiff seeks to add via amendment (see Thomsen, 50 AD3d at 1018-1019). While the merit of an application under CPLR 3025 is not before me, the existence of that provision makes clear that the circumstances under which a new defendant may be added to an action already proceeding are broader than those under which an entirely new claim may be commenced under section 10(6).
In light of the foregoing, I conclude that the balance of factors weighs in favor of claimant's application (see Yang, supra [allowing late claim arising out of March 12 accident to proceed against Thruway Authority]).
Accordingly, having reviewed the submissions before me and having considered all of the factors enumerated in the Court of Claims Act § 10 (6), IT IS ORDERED that motion no. M-83007 be granted to the extent it seeks leave to file a late claim against the New York State Thruway Authority, and that within thirty days of the filing of this Decision and Order, claimant shall serve and file a properly verified amended claim in the form of the proposed claim annexed to the moving papers, entitling it Amended Claim and referencing it with claim no. 120415, and adding the New York State Thruway Authority as a defendant. Service upon the Thruway shall be made in accordance with Court of Claims Act § 11, while service on the State shall be made in accordance with CPLR 2103 (see Rohany v State of New York, 144 Misc 2d 940 [Ct Cl 1989] [where defendant has already appeared, amended claim shall be served pursuant to CPLR 2103]). The amended claim should further amend the caption removing NYSDOT and NYSDMV as defendants, as the State of New York is the only properly named defendant for allegations against State agencies.
May 23, 2013
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, "Affirmation in Support of Notice of Motion to File a Late Notice of Claim as to New York State Thruway Authority," and annexed exhibits.
2. Defendant's Affirmation in Opposition.