Opinion
Claim No. None
01-16-2023
For Movant: BELDOCK LEVINE & HOFFMAN, LLP, By: David B. Rankin, Esq. For Defendant: LETITIA JAMES, New York State Attorney General, By: Suzette Corinne Merritt, Assistant Attorney General
For Movant: BELDOCK LEVINE & HOFFMAN, LLP, By: David B. Rankin, Esq.
For Defendant: LETITIA JAMES, New York State Attorney General, By: Suzette Corinne Merritt, Assistant Attorney General
Zainab A. Chaudhry, J. Movant Isaiah Goines seeks to bring a personal injury action for injuries allegedly sustained as a result of a high-speed police chase in Orange County, New York. Movant seeks an order pursuant to Court of Claims Act (CCA) § 10(5) deeming his proposed claim as timely or, in the alternative, permitting him to file a late claim under CCA § 10(6). The State opposes the motion. For the reasons stated below, movant's application for relief under CCA § 10(5) is denied but, after consideration of all the relevant factors, the motion is granted insofar as it seeks late claim relief under CCA § 10(6).
According to the proposed claim and the police accident report of the incident submitted by movant, on April 19, 2021, movant was driving at a high rate of speed while traveling west on Interstate 84, in the passing lane. After observing movant driving above the posted speed limit, a New York State Police vehicle initiated pursuit, attempting to catch up to movant's car from the right-hand lane. As the vehicles neared an off-ramp, movant crossed two lanes of travel in an apparent attempt to exit the highway, lost control of his vehicle, and struck the guardrail. The car became airborne and overturned several times, and movant was ejected from the vehicle. Movant was rendered a paraplegic and currently resides in a nursing home where he receives full-time medical care and assistance with basic life functions. The claim asserts that the State, under the doctrine of respondeat superior for the conduct of uniformed state troopers acting within the scope of their duties, acted negligently and with reckless disregard for movant's safety in violation of Vehicle and Traffic Law § 1104(e), by initiating and then failing to terminate the high-speed pursuit of movant, which resulted in movant's serious injuries.
As the State correctly notes, this Court does not have jurisdiction over the individually named proposed defendants (see Court of Claims Act § 9 ; see also Smith v. State of New York , 72 A.D.2d 937, 422 N.Y.S.2d 221 [4th Dept. 1979] ). Accordingly, the caption has been amended to reflect the only properly named defendant.
It is undisputed that no claim or notice of intention to file a claim was filed and served upon the Attorney General within 90 days of the accrual of the claim (see CCA § 10[3]). Movant brought this application approximately five months after the expiration of that time period.
CCA § 10(5) is Not Applicable Here
The tolling provision of CCA § 10(5) provides that where a claimant is "under a legal disability, the claim may be presented within two years after such disability is removed." In other words, where a claim accrues while a claimant is under a legal disability, "the two-year period is applicable and the claim allowable as of right" ( Boland v. State of New York , 30 N.Y.2d 337, 342, 333 N.Y.S.2d 410, 284 N.E.2d 569 [1972] ), and "permission to file a claim is not necessary to validate a filing made within the [two]-year period after removal of the disability" ( id. at 343, 333 N.Y.S.2d 410, 284 N.E.2d 569 ).
Movant argues that the claim should be deemed timely filed because his physical disability—including his paraplegia and related injuries that, from the time of the incident to date, prevent him from engaging in the basic activities of daily life—constitutes a legal disability under a plain reading of section 10(5). Movant has submitted various medical records in support of his application which indicate the serious nature of his injuries, the several surgeries that were performed during the course of his medical treatment, and his extended hospitalization. In opposition, the State asserts that a physical disability has never been deemed a legal disability for purposes CCA § 10(5) and, further, that movant's physical condition did not prevent him from meeting with his attorneys.
CCA § 10(5) does not define the term "legal disability," but infancy and incompetency have been recognized in this context as the two quintessential legal disabilities permitting application of section 10(5) ’s toll (see Barrett v. State of New York , 161 A.D.2d 61, 64 & 68, 560 N.Y.S.2d 302 [2d Dept. 1990] [referencing CCA § 10(5)’s "counterpart" tolling provision in CPLR 208 for those suffering from the disability of infancy or insanity], aff'd for reasons stated 78 N.Y.2d 1111, 578 N.Y.S.2d 873, 586 N.E.2d 56 [1991] ; Kaplan v. State of New York , 152 A.D.2d 417, 419, 549 N.Y.S.2d 853 [3d Dept. 1989] ; see also Boland , 30 N.Y.2d at 342-343, 333 N.Y.S.2d 410, 284 N.E.2d 569 [psychiatric hospitalization]; Puckerin v. State of New York , 159 A.D.3d 848, 69 N.Y.S.3d 836 [2d Dept. 2018] [psychiatric hospitalization]; Weber v. State of New York , 267 A.D. 325, 45 N.Y.S.2d 834 [3d Dept. 1944] [infancy]; cf. Baker v. State of New York , 186 A.D.2d 329, 329, 587 N.Y.S.2d 801 [3d Dept. 1992] [holding section 10(5) did not apply after "it was judicially determined that claimant was not an incapacitated person"]).
Here, despite movant's extensive physical injuries and long hospitalization for medical treatment after the incident, movant has not established that he was incompetent or otherwise mentally incapacitated as required for a claimant to obtain relief under CCA § 10(5). To the contrary, the records submitted by movant indicate that, immediately after the incident, movant was able to describe his injuries to medical staff, and was also able to discuss and consent to numerous medical procedures and treatment over the following weeks and months. Moreover, movant has not cited any legal authority that has adopted or supports his broad reading of section 10(5) as encompassing someone hospitalized with extensive physical injuries or suffering solely from a physical disability.
Movant was not an infant at the time the claim accrued.
Indeed, other than one now-abrogated exception discussed below, the application of CCA § 10(5) has not been expanded beyond the commonly understood legal disabilities of infancy and incompetency because section 10(5) —like all other filing requirements of CCA § 10—is jurisdictional in nature and, thus, is to be "strictly applied" ( Doe v. State of New York , 221 A.D.2d 218, 218, 634 N.Y.S.2d 57 [1st Dept. 1995] [affirming denial of relief under CCA § 10(5) where the claimant was no longer mentally disabled and citing McCarthy v. Volkswagen of America, Inc. , 55 N.Y.2d 543, 450 N.Y.S.2d 457, 435 N.E.2d 1072 (1982), which narrowly construed analogous CPLR 208 toll, in support of strict construction of section 10(5) ]; see also Kolnacki v. State of New York , 8 N.Y.3d 277, 281, 832 N.Y.S.2d 481, 864 N.E.2d 611 [2007] ; Greenspan Bros. v. State of New York , 122 A.D.2d 249, 249, 505 N.Y.S.2d 173 [2d Dept. 1986] ). As the Court of Appeals noted in discussing the Legislature's intent that the analogous tolling provision of CPLR 208 be "narrowly interpreted," a contrary, expansive interpretation of the statute "could greatly and perhaps inappropriately expand the class of persons able to assert the toll" and "weaken" the policy behind imposing the limitations periods in the first place ( McCarthy v. Volkswagen of America, Inc. , 55 N.Y.2d at 548-549, 450 N.Y.S.2d 457, 435 N.E.2d 1072 ). This policy concern is of even greater significance where the State's waiver of its sovereign immunity under the CCA is involved. Notably, the Court of Appeals has rejected application of the analogous CPLR 208 toll to an individual who, after being struck by a train owned by the defendant, "sustain[ed] extensive physical injuries;" was "hospitalized and treated with strong pain-killing drugs;" and was "unable to effectively attend to his affairs" ( Eisenbach v. Metropolitan Transp. Auth. , 62 N.Y.2d 973, 974-975, 479 N.Y.S.2d 338, 468 N.E.2d 293 [1984] [citing McCarthy and explaining that insanity is "a concept equated with unsoundness of mind"]).
Movant's reliance on Crawford v. State of New York , 37 A.D.2d 450, 326 N.Y.S.2d 449 (4th Dept. 1971) for the proposition that courts have expanded the definition of legal disability for purposes of CCA § 10(5) beyond infancy and incompetency is unavailing. Although movant is correct that the Crawford court considered a claimant's imprisonment to be a legal disability for purposes of the application of CCA § 10(5) in that case, Crawford has been effectively abrogated. Crawford ’s ruling was not based upon the fact of the claimant's incarceration and the attendant difficulties of prosecuting a claim from within prison; rather, the court relied upon an incarcerated person's legal incapacity to sue under former section 79 of the Civil Rights Law (see 37 A.D.2d at 452, 326 N.Y.S.2d 449 ; see also Kelly v. State of New York , 57 A.D.2d 320, 322-323 & 325, 395 N.Y.S.2d 311 [4th Dept.1977] [explaining rationale of Crawford ], aff'd on opinion below 45 N.Y.2d 973, 412 N.Y.S.2d 891, 385 N.E.2d 628 [1978] ). The Civil Rights Law was later amended—effective September 10, 1973—to provide that "[a] sentence of imprisonment in a state correctional institution ... shall not be deemed to suspend the right or capacity of any person so sentenced to commence and prosecute an action or proceeding in any court within this [S]tate" ( Civil Rights Law § 79[2] ; see Kelly , at 323, 395 N.Y.S.2d 311, citing L. 1973, ch. 687, § 1). Appellate courts have thus subsequently held that incarcerated claimants are not under any legal disability within the meaning of CCA § 10(5), but rather, are subject to the typical 90-day filing requirement (see Hall v. State of New York , 85 A.D.2d 835, 835, 446 N.Y.S.2d 424 [3d Dept. 1981] [affirming dismissal of claim and further noting that CPLR 208 was also similarly amended "to eliminate imprisonment as a ground for tolling the statute of limitations"]; see also Kelly , 57 A.D.2d at 325-326, 395 N.Y.S.2d 311, aff'd on opinion below 45 N.Y.2d 973, 412 N.Y.S.2d 891, 385 N.E.2d 628 ).
The Court of Appeals declined to reach the other issue presented in Kelly regarding the retroactive application of CCA § 10(6), but noted that that portion of the underlying Fourth Department holding in Crawford had been subsequently overruled by that same court in Fuoco v. State of New York , 64 A.D.2d 1030, 1031, 409 N.Y.S.2d 310 (4th Dept. 1978) (see Kelly , 45 N.Y.2d at 973, 412 N.Y.S.2d 891, 385 N.E.2d 628 ).
In sum, movant has not established that he suffered from a qualifying legal disability under CCA § 10(5) at the time his claim accrued. Thus, to the extent movant seeks to deem his claim as timely filed under section 10(5), that branch of the motion is denied.
Late Claim Relief Under CCA § 10(6) is Warranted
The motion appears timely (see CCA § 10[6]), and the State has not argued otherwise (cf. CCA § 11[c]).
CCA § 10(6) enumerates six factors to be weighed by the Court in connection with a late claim motion: (1) whether the delay was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the delay resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. This list is not exhaustive and the presence or absence of any one factor is not dispositive; rather, the Court in its discretion balances these factors in making its determination (see Bay Terrace Coop. Section IV, Inc. v. New York State Employees’ Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 N.Y.2d 979, 981, 449 N.Y.S.2d 185, 434 N.E.2d 254 [1982] ; see also Tucholski v. State of New York , 122 A.D.3d 612, 612, 996 N.Y.S.2d 97 [2d Dept. 2014] ).
As to the delay in filing, movant argues that his physical condition after the incident, throughout the 90-day filing period and beyond, constitutes a reasonable excuse. Movant again relies on the medical records he has submitted in support of his motion, primarily asserting that the catastrophic injuries he sustained as a result of the incident, and which have left him paralyzed and physically incapacitated, prevented him from consulting earlier with an attorney and timely filing the claim. The affirmation of movant's counsel further contends that, once counsel learned of the matter, it was difficult for counsel to meet and communicate with movant because, since the incident, he was bedridden in hospitals and nursing homes, where visitations were also curtailed due to Covid-19. Counsel notes that he was able to visit movant in the hospital in September 2021 and then immediately began an investigation into the claim. The State argues that no reasonable excuse for the delay exists because movant was discharged from the hospital where he was initially airlifted after the crash less than two months later, within the 90-day period to file and serve a claim or notice of intention to file a claim.
A potential claimant's physical / medical condition or hospitalization may constitute a reasonable excuse for purposes of CCA § 10(6) if supported by "either a physician's affidavit or hospital records" ( Goldstein v. State of New York , 75 A.D.2d 613, 614, 427 N.Y.S.2d 63 [2d Dept. 1980] ; see Crofut v. State of New York , 279 AD 681, 681-682, 107 N.Y.S.2d 947 [3d Dept. 1951], aff'd 303 N.Y. 897, 105 N.E.2d 113 [1952] ; see also Bloom v. State of New York , 5 A.D.2d 930, 931, 172 N.Y.S.2d 70 [3d Dept. 1958] ; Carmen v. State of New York , 49 A.D.2d 965, 965-966, 373 N.Y.S.2d 698 [3d Dept. 1975] ; Cole v. State of New York , 64 A.D.2d 1023, 1024, 409 N.Y.S.2d 306 [4th Dept. 1978] ; McGaughy v. State of New York , 55 A.D.2d 823, 823, 390 N.Y.S.2d 301 [4th Dept. 1976] ; Wolf v. State of New York , 140 A.D.2d 692, 692, 529 N.Y.S.2d 22 [2d Dept. 1988] ; cf. Cabral v. State of New York , 149 A.D.2d 453, 453, 539 N.Y.S.2d 792 [2d Dept. 1989] [affirming denial of late claim relief where only support offered to explain delay was a "conclusory assertion by the claimant's counsel" regarding the claimant's alleged hospitalization]). Further, "the excuse need only be ‘reasonable’[,] and it is not necessary that claimant establish his complete physical or mental inability to file on time" ( Carmen , 49 A.D.2d at 966, 373 N.Y.S.2d 698, quoting Stabile v. State of New York , 12 A.D.2d 698, 698, 207 N.Y.S.2d 509 [3d Dept. 1960] ).
Here, the medical records submitted in support of movant's application establish the critical nature of his injuries, including multiple vertebral fractures, cervicothoracic spinal column dislocation and spinal cord transection ; cerebrovascular injury; and multiple extremity fractures, among other serious injuries. Movant underwent several spine and other surgeries during the course of his medical treatment, as well as a tracheostomy. The records further indicate that movant's traumatic spinal cord injury required mechanical ventilator support from a few days after the crash until a few months later. Although he was discharged on June 9, 2021 to another hospital from the hospital to which he was initially airlifted, the records indicate that he was returned to the first hospital for further surgery on July 3, 2021—and remained there until July 22, 2021, a date falling beyond the applicable 90-day filing period. Movant indicates in his own affidavit that, for months after the incident, he was unable to speak due to the placement of a tracheostomy collar or use his hands. Given the extensive documentation of movant's serious injuries, as well as his prolonged hospitalization and medical treatment, movant has established a reasonable excuse for the delay.
Contrary to the State's suggestion, the fact that several additional months passed from the time movant retained counsel to the filing of this application for late claim relief is of no moment inasmuch as the period to which the proffered excuse must refer is the 90 days after accrual of the claim (see Bloom , 5 A.D.2d at 931, 172 N.Y.S.2d 70 [holding that "the 90-day period is the crucial time and if there is adequate excuse for letting that time go by, the effective disability (of the claimant) need not continue through all the succeeding period before the motion to file the claim is made"]; Cole , 64 A.D.2d at 1024, 409 N.Y.S.2d 306 [quoting Bloom ]).
Turning to the related factors of the State's notice of the essential facts, its opportunity to investigate, and whether it will be prejudiced by a late filing, the State does not oppose the motion on these grounds. Nor could it seriously do so where it is undisputed that the State received actual notice of the facts constituting the claim because the incident involved a State Trooper driving a state police vehicle, and the State immediately commenced and conducted a lengthy investigation (see Wolf , 140 A.D.2d at 693, 529 N.Y.S.2d 22 ; see also Tucholski , 122 A.D.3d at 612, 996 N.Y.S.2d 97 ). In addition, the State also does not dispute movant's assertion that he has no other alternate remedy. Thus, for purposes of deciding this motion, movant's unrefuted factual assertions relating to these four factors must be taken as true and thereby weigh in movant's favor (see Sessa v. State of New York , 88 Misc. 2d 454, 458, 388 N.Y.S.2d 513 [Ct. Cl. 1976], aff'd 63 A.D.2d 334, 408 N.Y.S.2d 547 [3d Dept. 1978], aff'd 47 N.Y.2d 976, 419 N.Y.S.2d 972, 393 N.E.2d 1044 [1979] ; see also Cole , 64 A.D.2d at 1024, 409 N.Y.S.2d 306 ). The final and most important factor here in determining the application for late claim relief is whether movant has demonstrated the appearance of a meritorious claim, because "it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" ( Prusack v. State of New York , 117 A.D.2d 729, 730, 498 N.Y.S.2d 455 [2d Dept. 1986] ; see also Calverley v. State of New York , 187 A.D.3d 1426, 1427, 134 N.Y.S.3d 554 [3d Dept. 2020] ; Shah v. State of New York , 178 A.D.3d 871, 872, 111 N.Y.S.3d 910 [2d Dept. 2019] ). The movant need not establish a prima facie case at this stage of the proceedings (see Santana v. New York State Thruway Auth. , 92 Misc. 2d 1, 11-12, 399 N.Y.S.2d 395 [Ct. Cl. 1977] ), and a claim has the appearance of merit if it is "not ... patently groundless, frivolous or legally defective, and the record as a whole ... give[s] reasonable cause to believe that a valid cause of action exists" ( Calverley , 187 A.D.3d at 1427, 134 N.Y.S.3d 554 ; see also Goldberg v. State of New York , 122 A.D.2d 248, 249, 505 N.Y.S.2d 443 [2d Dept. 1986] ; Sands v. State of New York , 49 A.D.3d 444, 444, 853 N.Y.S.2d 555 [1st Dept. 2008] ). In applying this standard, the Court may consider "all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of apparent merit" ( Fernandez v. State of New York , 43 Misc. 3d 1221(A), 2014 N.Y. Slip Op. 50741[U], 2014 WL 1851175 [Ct. Cl. 2014] ).
As relevant here, VTL § 1104 provides that the driver of an authorized emergency vehicle, including police vehicles, is permitted to exceed maximum speed limits and disregard certain other traffic rules "when involved in an emergency operation" ( VTL § 1104[a] ; see also VTL § 101 [defining authorized emergency vehicle]). However, the provisions of section 1104 do not protect the drivers of such authorized emergency vehicles "from the consequences of [their] reckless disregard for the safety of others" ( id. at § 1104[e] ; see Saarinen v. Kerr , 84 N.Y.2d 494, 499-503, 620 N.Y.S.2d 297, 644 N.E.2d 988 [1994] [analyzing and confirming section 1104[e] ’s heightened recklessness standard for determining the civil liability resulting from a police officer's privileged operation of covered emergency vehicle]). The reckless disregard standard requires evidence that the driver intentionally committed "an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome" ( Saarinen , 84 N.Y.2d at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 [internal quotation omitted]; see Frezzell v. City of New York , 24 N.Y.3d 213, 217, 997 N.Y.S.2d 367, 21 N.E.3d 1028 [2014] ; see also Foster v. Suffolk Co. Police Dept. , 137 A.D.3d 855, 856, 26 N.Y.S.3d 781 [2d Dept. 2016] ; Quintana v. Wallace , 95 A.D.3d 1287, 1287, 945 N.Y.S.2d 366 [2d Dept. 2012] ). The violation of an internal police policy may be an important, though not dispositive, factor in determining recklessness (see Criscione v. City of New York , 97 N.Y.2d 152, 158, 736 N.Y.S.2d 656, 762 N.E.2d 342 [2001], citing Saarinen , 84 N.Y.2d at 503 n. 3, 620 N.Y.S.2d 297, 644 N.E.2d 988 ; see also Teitelbaum v. City of New York , 300 A.D.2d 649, 650, 752 N.Y.S.2d 705 [2d Dept. 2002], lv denied 100 N.Y.2d 513, 767 N.Y.S.2d 394, 799 N.E.2d 617 [2003] ).
Although the proposed claim captions the cause of action as one for "Negligence and Gross Negligence," it primarily includes allegations that the troopers acted with reckless indifference or disregard for movant's safety under VTL § 1104(e). The affirmation in support of the motion likewise makes brief, general reference to negligence and gross negligence, but essentially predicates its argument upon the alleged breach of the reckless disregard standard of section 1104(e). In its opposition papers, the State appears to agree that this is the applicable standard of care.
Here, the proposed claim alleges that the state troopers who initiated and continued pursuit of movant's vehicle acted negligently and with reckless disregard for movant's safety, in violation of VTL § 1104(e), and that this conduct proximately caused the accident and movant's injuries. Specifically, the claim alleges that the troopers acted recklessly in pursuing movant's speeding vehicle at more than 100 miles per hour and failing to terminate the pursuit because they were aware, or should have been aware, of the high probability that a collision would occur under such circumstances. The claim further alleges that other (unnamed) troopers, acting in a supervisory capacity, also acted recklessly by failing to direct termination of the pursuit when it became dangerous. The proposed claim appends a copy of the police accident report for the accident which indicates that, after observing movant driving at a high rate of speed in the left-hand lane of the interstate, the troopers pursued him in the right-hand lane, in an attempt to catch up to him. The accident report and attached diagram indicate that the crash of movant's vehicle occurred as both vehicles neared an off-ramp and movant attempted to exit the highway, losing control of his vehicle and striking the guardrail. In support of his motion, movant also argues that violations of internal police policies governing vehicle pursuits could constitute reckless disregard within the meaning of VTL § 1104, and that he was in the process of attempting to obtain the State Police vehicle pursuit policy. The State argues, in a cursory manner, that movant fails to make a sufficient showing of merit because he has not provided additional supporting documentation for his allegations. The State further contends that movant's own actions caused the accident and his resulting injuries. Specifically, the State asserts that movant was dangerously driving a stolen vehicle, in an attempt to evade capture by police, and that the accident occurred when he unsafely tried to exit the highway at a dangerous speed from the passing lane.
In reply, movant attaches the internal State Police policy governing vehicle pursuits that he subsequently received in response to his Freedom of Information Law request, as well as an affidavit and report from Professor Geoffrey Alpert, Ph.D., proffered as an expert in police vehicle pursuits. Dr. Alpert's affidavit opines that, in pursuing movant at speeds greater than 100 miles per hour, and subsequently failing to terminate the pursuit, the troopers violated the applicable State Police policy regarding high-speed vehicle pursuits and acted with reckless disregard for the safety of movant and others. Movant's reply submission also includes narratives by Trooper Quimby, who was on patrol and initiated the pursuit of movant's vehicle, and Investigator Joseph Fitzpatrick. Investigator Fitzpatrick's narrative states that movant was operating a vehicle that had been stolen during a carjacking in the Bronx, and that movant was clocked going 97 miles per hour by Trooper Quimby's radar before he activated his patrol car's lights and sirens and initiated pursuit, with both vehicles ultimately traveling at speeds greater than 100 miles per hour. Trooper Quimby's statement similarly indicates that movant's car sped up to over 100 miles per hour and failed to stop even though the patrol car's emergency lights were on. The trooper also stated that movant's driving created a grave risk of death to other drivers on the roadway. Movant's reply papers also include the statements of two witnesses, both of whom describe the speed of movant's car as going about 90 miles per hour, and that after the trooper vehicle pulled out to pursue movant, it took approximately 30 seconds for the patrol car to activate the emergency lights. Although "the fact that [an] officer was exceeding the speed limit does not by itself constitute a predicate for the imposition of liability" ( Powell v. City of Mount Vernon , 228 A.D.2d 572, 573, 644 N.Y.S.2d 766 [2d Dept. 1996] [citing Saarinen , 84 N.Y.2d at 503, 620 N.Y.S.2d 297, 644 N.E.2d 988 ]), questions of fact appear to exist regarding, for example, what occurred in the moments before the accident; when the police vehicle's emergency lights were activated; and whether the troopers followed the State Police vehicle pursuit policy, or engaged in any actions during the pursuit that interfered with movant's ability to slow down or pull over. But the Court may not engage in fact-finding in determining an application for late claim relief, and "to the extent issues of fact exist, that does not vitiate the appearance of merit under CCA § 10(6)" ( Jomarron v. State of New York , 23 A.D.3d 527, 527, 806 N.Y.S.2d 617 [2d Dept. 2005] ; see also Marcus v. State of New York , 172 A.D.2d 724, 725, 569 N.Y.S.2d 109 [2d Dept. 1991] ). Thus, there is sufficient information within the proposed claim and the accompanying submissions to indicate that the claim is not "patently groundless, or that the [movant] may not be able to show, after a greater development of the facts, that he has a valid cause of action" ( Goldberg v. State of New York , 122 A.D.2d at 249, 505 N.Y.S.2d 443 [internal quotation marks omitted] [citing Prusack v. State of New York , 117 A.D.2d 729, 498 N.Y.S.2d 455 ]), even under the demanding reckless disregard standard (see Frezzell v. City of New York , 24 N.Y.3d at 217-218, 997 N.Y.S.2d 367, 21 N.E.3d 1028 ["Whether the standard was met here is a fact-specific inquiry and our analysis is focused on the precautionary measures taken by [the officer] to avoid causing harm to the general public weighed against his duty to respond to an urgent emergency situation."]); see also Handelsman v. Llewellyn , 208 A.D.3d 1, 171 N.Y.S.3d 468 [1st Dept. 2022] [denying summary judgment where issues of fact existed regarding whether police officers acted recklessly under the circumstances and whether the police pursuit was a proximate cause or a concurrent cause of the accident]).
Contrary to movant's assertion, there is no indication in the papers submitted that charges against movant related to whether the vehicle he was driving was stolen, if any, have been dismissed (see Rankin Affirmation in Reply, 65 & n 8, and Exh. 17). The dismissal of charges referenced in another narrative by Investigator Fitzpatrick appears to indicate only that local authorities in the jurisdiction where the crash occurred dismissed the traffic violation charges against movant in the interest of justice, in view of the injuries he suffered (see id. at Exh. 17).
In sum, after carefully considering and weighing the relevant statutory factors, late claim relief is warranted because movant has a reasonable excuse for his delay in timely filing a claim, the State does not dispute the lack of prejudice and it acknowledges that it had notice and an opportunity to investigate the incident, and the proposed claim appears meritorious (see Bloom , 5 A.D.2d at 930-931, 172 N.Y.S.2d 70 [affirming grant of late claim relief where the movant was immobilized in a hospital or at home as a result of skating injury during entire 90-day period and State had "abundant notice" of the accident and essential facts constituting the claim]; Cole , 64 A.D.2d at 1023-1024, 409 N.Y.S.2d 306 [holding, upon consideration of entire record, that late claim relief was warranted where the movant was hospitalized after snowmobile accident for 13 days and remained either immobilized or nonambulatory for approximately six months, and State filed no affidavit claiming either prejudice or lack of notice]; Carmen , 49 A.D.2d at 966, 373 N.Y.S.2d 698 [affirming grant of late claim relief, in view of all the circumstances, where the movant was hospitalized for eight days after fall from ladder, sustained bilateral fractures of both heels, remained bedridden and needed a wheelchair for approximately five months, and State had knowledge of essential facts constituting the claim inasmuch as a full accident report had been filed by police officer]; Crofut , 279 A.D. at 681-682, 107 N.Y.S.2d 947 [granting late claim relief where the movants were hospitalized or bedridden for four and six months, respectively, and under medical care for seven months after car accident, and lack of knowledge or prejudice on the part of the State was not claimed], aff'd 303 N.Y. 897, 105 N.E.2d 113 [1952] ; McGaughy , 55 A.D.2d at 823, 390 N.Y.S.2d 301 [granting late claim relief where the movant was hospitalized during the entire 90-day period, and State had actual knowledge and conceded it was not prejudiced by the late filing]; see also Toof v. State of New York , 260 A.D. 830, 830, 22 N.Y.S.2d 394 [3d Dept. 1940] [granting late claim relief where "as a result of his injuries[,] claimant was unable to consult with counsel for a substantial period of time," and State was not prejudiced by granting of the application], aff'd 286 N.Y. 620, 36 N.E.2d 457 [1941] ).
Accordingly, it is
ORDERED that, to the extent that movant is seeking permission to file a late claim under CCA § 10(6), that branch of Motion No. M-97689 is GRANTED; and it is further ORDERED that, within forty-five (45) days of the date of filing of this Decision and Order, movant shall serve and file with the office of the Clerk of the Court the proposed claim, naming the State of New York as the only defendant, and ensuring compliance with the requirements of Court of Claims Act § 11 and § 11-a, as well as the Uniform Rules for the Court of Claims; and
ORDERED that Motion No. M-97689 is otherwise DENIED in all respects.