Opinion
# 2019-041-012 Claim No. NONE Motion No. M-93404
03-13-2019
CHARLES M. LASHER and RUTHMARY LASHER v. THE STATE OF NEW YORK
MARTIN, HARDING & MAZZOTTI, LLP By: Craig A. Cushing, Esq. HON. LETITIA JAMES New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General
Synopsis
Application to file late claim is granted where claim alleging that defendant failed to adequately maintain state highway has appearance of merit and defendant had notice of circumstances underlying claimant's accident and injuries.
Case information
| UID: | 2019-041-012 |
| Claimant(s): | CHARLES M. LASHER and RUTHMARY LASHER |
| Claimant short name: | LASHER |
| Footnote (claimant name) : | |
| 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-93404 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | MARTIN, HARDING & MAZZOTTI, LLP By: Craig A. Cushing, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 13, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants move for permission to file a late claim. Defendant opposes the motion.
The proposed claim alleges that Charles M. Lasher (claimant) was injured on "October 10, 2017 at 7:15 p.m. on State Route 22 in Canaan, New York." At that time and location, claimant was operating his motorcycle when "he encountered a section of the road with a deteriorated, uneven driving surface that was in a hazardous state for motorists. This condition caused him to lose control of his motorcycle, crash, and suffer injuries."
The proposed claim further alleges that State Route 22 "was owned at all times relevant by the State of New York [and] was designed, constructed and maintained, and is currently maintained, by the State of New York." The proposed claim alleges that the defendant "had actual and/or constructive notice of a defective condition of the aforementioned Roadway before the accident [and defendant] created said dangerous and defective condition through their affirmative acts in creating said defects prior to this crash and in failing to warn of said condition."
The proposed claim also sets forth a derivative cause of action for claimant's wife.
The proposed claim includes a copy of the New York State Police Accident Report and copies of photographs "depicting the condition of the roadway."
The claimant's affidavit in support of his late claim application further explains his proposed claim's recitation as to how the accident happened and notes, significantly, that the accident was investigated by the New York State Police, who issued an accident report which specifically identified only one factor, among many potential factors, as "contributing" to the accident: "Pavement Defective."
The claimant's affidavit further states that due to the severity of his injuries, and his focus on his physical recovery, he was unaware that he "may have a claim against the State of New York due to the dangerous condition of the road" and was unaware of the ninety-day period in which he was required to serve and file a claim.
After retaining his present attorneys "approximately 10 months after the crash," claimant made this application, on January 8, 2019, seeking permission to file and serve a late claim against the State of New York.
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
The cause of action arose on October 10, 2017. The claimant's ninety-day period to file and serve his claim expired on January 8, 2018. The application to file a late claim was made on January 8, 2019, one year after the ninety-day period to file and serve a claim had expired (see Court of Claims Act 10 [3]).
The proposed claim alleges a cause of action sounding in negligence. CPLR 214 provides a three-year period to commence an action for negligence and the cause of action is not time-barred by CPLR Article 2.
In determining the application, Court of Claims Act 10 (6) provides that:
"[T]he court shall consider, among other factors, 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 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."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).
Claimant seeks to excuse his failure to timely serve and file his claim by essentially asserting that the severity of his injuries and his ignorance of the law precluded timely filing and service. Claimant has failed to offer admissible proof supporting his assertion that his injuries precluded timely filing and service of his claim (Matter of Magee v State of New York, 54 AD3d 1117, 1118 [3d Dept 2008]) and ignorance of the law does not excuse failure to comply with the applicable filing and service requirements (Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]; Powell v State of New York, 187 AD2d 848, 849 [3d Dept 1992]).
Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, "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, Inc., 55 NY2d at 981).
The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. The State appears to have had prompt notice of claimant's accident and an opportunity to investigate the circumstances underlying the proposed claim. The New York State Police investigated the accident and an accident report was prepared immediately after the accident.
Defendant does not persuasively deny that it had notice of the accident and had an opportunity to investigate the circumstances underlying the proposed claim; nor does defendant persuasively show that it would be prejudiced in the event late claim relief is granted. In particular, defendant has not set forth any basis to conclude that it is in any worse position now with respect to the allegations of the claim than it would have been had a claim been filed and served within ninety days of the accident.
Claimant has no alternative remedy.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
The law is well-settled that the State of New York has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (Friedman v State of New York, 67 NY2d 271, 283 [1986]). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). Claimant must prove negligence on the part of the defendant and that the defendant's negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]). In general, liability for negligent highway maintenance will not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (Rinaldi v State of New York, 49 AD2d 361, 363 [3d Dept 1975]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]).
In addition to the proposed claim, claimant's supporting affidavit, the New York State Police Accident Report and photographs of the allegedly hazardous condition, claimant has provided the affidavit of Ronald A. Bova (Bova), a New York State Licensed Professional Engineer, who states that he has "been involved with numerous roadway design and construction projects" and has "investigated numerous roadways including New York State roads, pertaining to unsafe, hazardous conditions that caused and/or contributed to motorists being severely injured from motor vehicle crashes as a result of improper road maintenance, inspections, construction, design, repair and lack of proper signing."
Bova "inspected the roadway, reviewed photographs and [has] reviewed the police accident report and the Affidavit of Charles M. Lasher."
Bova opines, to a "reasonable degree of engineering certainty, that the road surface condition of the roadway in the area of the crash was a dangerous and hazardous condition for motorists that required a proper warning sign to apprise motorists like the [claimant] of danger posed by the deteriorated, uneven and pitted pavement."
Bova further opines that the "depressions in the roadway were capable of and did in fact cause {claimant] to lose control of his motorcycle." Bova further concludes that the dangerous condition would have occurred "gradually over time" and "would have and should have been identified in a Condition Report" if "an inspection of the roadway was performed as part of the roadway maintenance procedures of the State."
Finally, Bova concludes, "with a reasonable degree of engineering certainty, that the deteriorated roadway surface condition, as well as the failure to provide adequate warning signs to alert motorists of the hazardous condition of State Route 22 was a proximate cause of the motorcycle crash and the plaintiffs resulting injuries."
Defendant has not offered an affidavit, or any other competent evidence, by either a person with personal knowledge of the facts, or by an expert witness, disputing the factual allegations of the proposed claim and the claimant's supporting affidavit or disputing the opinions and conclusions of claimant's expert. The allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
The proposed claim demonstrates at least the "appearance of merit" of a cause of action for highway liability based upon a dangerous condition.
Based upon a balancing of the factors set forth in section 10 (6) of the Court of Claims Act, the Court grants claimant's application to file a late claim.
Claimant is directed to file and serve his claim in compliance with sections 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this Decision and Order with the Clerk of the Court of Claims.
March 13, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed January 11, 2019; 2. Affirmation of Craig A. Cushing, dated January 8, 2019, and attached exhibit; 3. Affidavit of Charles M. Lasher, sworn to January 8, 2019, and attached exhibits; 4. Affidavit of Ronald A. Bova, P.E., sworn to January 8, 2019, and attached exhibits; 5. Affirmation in Opposition of Belinda A. Wagner, dated February 6, 2019, and attached exhibit.