Opinion
09-05-2023
Yasmin Karagozler, Movant, v. The State of New York, Defendant.
For Movant: Gekman Law Firm, P.C. By: Zoya Gekman, Esq. For Defendant: Hon. Letitia James, Attorney General of the State of New York By: Akosua K. Goode, Assistant Attorney General
Unpublished Opinion
MOTION DECISION
For Movant:
Gekman Law Firm, P.C.
By: Zoya Gekman, Esq.
For Defendant:
Hon. Letitia James, Attorney General of the State of New York
By: Akosua K. Goode, Assistant Attorney General
Javier E. Vargas, J.
Papers Considered:
Notice of Petition, Verified Petition, Affirmation & Exhibits
1-9
Affirmation in Opposition
10
Upon the foregoing papers and for the following reasons, the Motion by Movant Yasmin Karagozler (hereinafter "movant"), for leave to serve a late notice of intention to file a claim, is denied in accordance with the following decision.
By "Notice of Petition" filed on May 4, 2023, the movant moves, pursuant to Court of Claims Act § 10(6), for leave to serve a late "notice of intention to file a claim" against the State of New York (hereinafter "State"). Specifically, the movant alleges that on July 13, 2022, she was driving westbound on Interstate 278 in Staten Island, New York, when she was rear-ended in a two-car collision by a New York "State Trooper vehicle" (Affirmation in Support at 1, 2, ¶¶ 4, 6). As a result, she allegedly "sustained severe injuries to her head, neck, back and right shoulder which have not subsided, despite extensive medical care and attention" (id. at 2, ¶ 7). Movant retained her lawfirm on July 25, 2022 to represent her in the personal injury claim arising from the accident, and claims as an excuse that she was not aware that the Court of Claims Act requires that either an action be commenced or a notice of intention to file a claim should be served on the State within 90 days of the accident. Furthermore, the movant contends that, even though there was a five-month delay, there was no prejudice since the State received timely notice of the essential facts constituting the Claim from the police accident report along with her office's letter of representation sent less than two weeks following the accident, and had an opportunity to investigate the mishap. The movant argues that her claim is meritorious as evidenced by the medical records proving that she sustained severe personal injures and there is no indication that her claim is patently meritless or legally defective.
In support of her "Notice of Petition," the movant attaches an Affirmation, a Verified Petition, exhibits A to F, consisting of her medical records, as well as a proposed Notice of Intention to File a Claim, labeled as exhibit G.
By Affirmation in Opposition filed June 1, 2023, the State opposes the Petition, arguing that the movant has set forth no reasonable excuse for the seven-month delay after the expiration of the 90-day statutory deadline in serving and filing a claim. The only excuse proffered is that movant's counsel, who appears to have an extensive personal injury practice, including motor vehicle accidents, was not aware of the Court of Claims statutory requirements. Furthermore, the State denies that it timely acquired notice of the essential facts constituting the claim within the requisite 90 days, or had an opportunity to promptly investigate, as the police accident report is devoid of information which is necessary to apprise it of the claim's essential facts. The State further argues that movant's failure to timely bring the proposed claim has resulted in substantial prejudice in that she waited some nine months after the accident, thereby compromising the State's ability to gather evidence, establish the location and identify witnesses who may aid in the State's defense. Finally, the State argues that movant has an alternative remedy in that she can sue the driver of the State vehicle individually in Supreme Court.
Following its review of the submissions, the Court agrees with the State.
Pursuant to Court of Claims Act § 10(3), a claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of a State employee shall be filed and served upon the attorney general within 90 days after the accrual of such claim, unless the claimant serves upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon him/her within two years afer the accrual of such claim (see Lepkowski v State of New York, 1 N.Y.3d 201, 209 [2003]; Brown v New York State Bd. of Parole, 11 A.D.3d 842, 843 [3d Dept 2004]). A claimant who fails to serve upon the attorney general a claim or notice of intention to file a claim within the time limitation may nevertheless, at the discretion of the court, be permitted to file a late claim at any time before an action asserting a like claim against a citizen of the State would be barred under the CPLR (see Court of Claims Act § 10[6]). Additionally, Court of Claims Act § 10(6) directs that a copy of the proposed claim, containing all of the relevant information set forth in Court of Claims Act § 11 shall accompany the application. The Court of Claims Act does not provide for the filing of a late notice of intention to file a claim, and the plain language of Court of Claims Act § 10(6) provides for permission to file a late claim only (see Oestreicher v State of New York, UID 2011-045-012 [Ct Cl, Lopez-Summa, J., March 14, 2011]).
Where a claim is untimely, the Court of Claims is vested with broad discretion to grant or deny the motion for permission to file a late claim following the consideration of the statutory factors enumerated in Court of Claims Act § 10(6) (see Matter of Barnes v State of New York, 161 A.D.3d 1325 [3d Dept 2018]). Such enumerated factors include: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or timely serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy" (Court of Claims Act § 10(6); Cox v New York State Thruway Auth., 186 A.D.3d 560, 561 [2d Dept 2020]). No single factor is controlling, nor is the presence or absence of any factor determinative (see Cox v State, 164 A.D.3d at 561; Casey v State of New York, 161 A.D.3d 720 [2d Dept 2018]).
Applying these principles to the case at bar, the movant's application fails. Although Court of Claims Act § 10(6) clearly states that the application for permission to file a late claim shall be made upon a "motion," the movant improperly filed a "Notice of Petition" seeking leave to serve and file a "late notice of intention to file a claim." Instead of a proposed claim, movant attaches a barebones proposed "Notice of Intention to File a Claim" to her application (see Notice of Petition, Exh. G). While there is no application to serve and file a late notice of intention in Court of Claims practice, this Court may treat movant's application as one for permission to serve and file a late claim (see Griffen v State of New York, UID No. 2006-030-585 [Ct Cl, Scuccimarra, J., December 4, 2006]; Vega v State of New York, UID No. 2008-030-503 [Ct Cl, Scucccimarra, J., February 7, 2008]). Indeed, "Court of Claims judges routinely treat improperly titled motions to file a late notice of intention as properly titled motions to file a late claim where it is clear that both parties to the action have treated the motion as one to file a late claim pursuant to Court of Claims Act § 10(6)" (Lang v State of New York, UID No. 2007-045-008 [Ct Cl, Lopez-Summa, J., June 7, 2007]).
Unfortunately, in this instance, this Court cannot make the same determination. The statutory difference between a claim and a notice of intention to file a claim is that in the notice of intention, it is unnecessary to allege the items of damage and the amount claimed, whereas the claim must contain that information (see Sacher v State of New York, 211 A.D.3d 867, 873 [2d Dept 2022]). Upon careful review of the movant's papers, as well as the annexed proposed "Notice of Intention to File a Claim," it is clear that movant's application is to file a late notice of intention to file a claim. Considering that there is no such provision in the Court of Claims Act for a movant to file a late notice of intention to file a claim by way of a notice of petition, this Court finds that the proper procedure was for movant to file a motion for permission to file and serve a late claim.
Even if this Court were to convert the instant "Notice of Petition" to a notice of motion and the proposed "notice of intention to file a claim" to a proposed claim, the movant has not satisfied the provisions of Court of Claims Act §§ 10(6) or 11(b). This Court concurs with the State that ignorance of the law is not an acceptable explanation for the failure to serve a timely notice of claim (see Matter of Lynch v State of New York, 2 A.D.3d 1002 [3d Dept 2003]); Matter of Sandlin v State of New York, 294 A.D.2d 723 [3d Dept 2002]). Correspondingly, it is well- settled that law office failure is not considered a reasonable or sufficient excuse for a delay in filing a Claim (see Decker v State of New York, 164 A.D.3d 650, 652 [2d Dept 2018]; Casey v State, 161 A.D.3d at 721; Naar v City of New York, 161 A.D.3d 1081, 1083 [2d Dept 2018]). Likewise, this Court in not convinced that the State received notice of the essential facts within the requisite 90 days after the date of the occurrence, or had an opportunity to promptly investigate, by merely receiving the police accident report which is devoid of particularized information, does not diagram any damage to the vehicles or include the specific location of the accident on Interstate 278.
What's more, the record reflects that movant filed the instant application on May 4, 2023. To satisfy the Court of Claims Act § 10(3), the movant should have filed and served a claim or a notice of intention to file a claim within 90-days of July 13, 2022, or by October 11, 2022. Assuredly, a close to ten-month delay in filing a claim is more than likely to result in prejudice to the State, and will hamper the State's ability to gather evidence, attend to the particular scene of the accident, and identify pertinent witnesses. Movant's argument that the State had an opportunity to investigate the claim because its claims adjuster was notified of the accident creates an unreasonable expectation that the State should investigate adjustment claims in the same manner in which it investigates claims for litigation purposes.
As for the merits of the claim, "[i]t is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective" (Houser v State of New York, UID No. 2017-053-551 [Ct Cl, Sampson, J., September 14, 2017]). Whenever the Court must consider whether a person has sustained serious physical injury as a result of a car accident, the no-fault Insurance Law § 5102(d) is applicable (see Licari v Elliott, 57 N.Y.2d 230, 237 [1982]; Vishevnik v Bouna, 147 A.D.3d 657 [1st Dept 2017]; Bailey v Islam, 99 A.D.3d 633 [1st Dept 2012]). Upon perusal of the medical records, annexed to the instant application, those records do not generally reflect that the movant suffered a "serious injury" within the meaning of Insurance Law § 5102(d). Specifically, after being examined at the hospital immediately after the accident in July 2022, the movant was diagnosed as having a "closed head injury" and was "discharge[d with] instructions for Minor Injuries from Motor Vehicle Accident" (Notice of Petition, Exh. E, at 4). Only months after in September 2022, test results "reveal[ed] no evidence of peripheral neuropathy of the lower extremities at this time...[but t]here is evidence of lumbar" and cervical radiculopathy (id.). However, the movant has offered no proof that these injuries and aches were significant or substantial and/or incapacitated her or interfered with her ability to work or engage in activities at home in any way (see Licari, supra at 238, 239).
Insurance Law § 5102(d) defines "serious injury"as: personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of fetus; permanent loss of use of body organ, member function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred days immediately following the occurrence of the injury or impairment.
Lastly, it is undisputed that the movant has remedies available to her other than suing the State in the instant Court. The movant may commence an action against the driver of the offending vehicle in Civil or Supreme Court (see Morell v Balasubramanian, 70 N.Y.2d 297, 301-302 [1987]; Matter of Bonaventure v New York State Thruway Auth., 114 A.D.2d 674, 675 [ed Dept 1986], affd 67 N.Y.2d 811 [1986]; Decker v State, 164 A.D.3d at 654).
Based on the foregoing and in consideration of the enumerated factors contained in Court of Claim Act § 10(6), this Court finds that movant has not met her burden of proof. Accordingly it is ORDERED that movant's application, M-99398, to file a late Notice of Intention to File a Claim is denied without prejudice.