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Polacco v. New York State Thruway Auth.

Court of Claims of New York
May 4, 2012
# 2012-040-034 (N.Y. Ct. Cl. May. 4, 2012)

Opinion

# 2012-040-034 Claim No. NONE Motion No. M-80994

05-04-2012

POLACCO v. NEW YORK STATE THRUWAY AUTHORITY


Synopsis

Movant's motion for permission to file and serve a claim late pursuant to CCA § 10(6) granted. Case information

UID: 2012-040-034 Claimant(s): MICHAEL POLACCO Claimant short name: POLACCO Footnote (claimant name) : Defendant(s): NEW YORK STATE THRUWAY AUTHORITY Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-80994 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY BASCH & KEEGAN, LLP Claimant's attorney: By: Derek J. Spada, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Joan Matalavage, Esq., AAG Third-party defendant's attorney: Signature date: May 4, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision

For the reasons set forth below, the application of Movant, Michael Polacco, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted.

Movant has already filed and served three (3) Claims with this Court regarding the subject incident: he filed and served a Claim against the State of New York (Polacco v State of New York, Claim No. 120101 [filed July 15, 2011]) and two (2) against the New York State Thruway Authority (hereinafter NYSTA or Thruway Authority) (Polacco v New York State Thruway Authority, Claim No. 120441 [filed October 6, 2011] and Claim No. 120488 [filed October 19, 2011]).

Movant has attached copies of all three (3) of the Claims to his moving papers. The Court will consider the copy of the second filed Claim against NYSTA to be the proposed Claim (Ex. E attached to Motion). The proposed Claim alleges that, on June 12, 2011, between 12:00 p.m. and 1:00 p.m., Movant was riding his motorcycle in the left, southbound lane of the New York State Thruway at the entrance to the bridge immediately to the south of the New Baltimore service area, when he lost control of his vehicle because his rear tire lost contact with the pavement as the roadway had separated and heaved at the entrance to the bridge. Movant alleges that the roadway was in poor repair as a result of NYSTA's negligence.

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). The cause of action accrued on the date of the alleged accident, June 12, 2011. Thus, 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]). Movant 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 Movant to persuade the Court to grant his or her 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. Movant's counsel asserts that the delay is excusable because he was not aware that a separate claim against NYSTA needed to be commenced. The Court finds that this is not a reasonable excuse (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]; Hepner v State of New York, Ct Cl, Claim No. None, Motion No. M-76005, February 13, 2009, Ruderman, J. [UID No. 2009-010-002]). However, 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., 55 NY2d 979, 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.

Defendant does not assert lack of notice, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (see Affidavit in Opposition of Joan Matalavage, Esq.). The Court concludes that NYSTA had notice of the accident, had an opportunity to investigate and will not be substantially prejudiced by the delay in making this motion. Thus, on balance, the Court finds that these factors weigh in Movant's favor.

The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does 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 Movant's 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 Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).

At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movant. Based upon the entire record, the Court finds that the proposed Claim has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor. The mix of circumstances presented by this case falls well within the remedial purposes of the amendment 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, indicating 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, 92 Misc 2d 1033, supra at 1036). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the NYSTA as set forth above. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the Clerk of the Court his proposed Claim against the NYSTA and serve a copy of the proposed Claim upon the NYSTA and the Attorney General personally or by certified mail, return receipt requested. In serving and filing the Claim, Movant is 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.

May 4, 2012

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were read on Movant's application for permission to file a late claim: Papers Numbered

Notice of Motion, Affirmation in Support

& Exhibits Attached 1

Affidavit in Opposition 2

Reply Affirmation 3


Summaries of

Polacco v. New York State Thruway Auth.

Court of Claims of New York
May 4, 2012
# 2012-040-034 (N.Y. Ct. Cl. May. 4, 2012)
Case details for

Polacco v. New York State Thruway Auth.

Case Details

Full title:POLACCO v. NEW YORK STATE THRUWAY AUTHORITY

Court:Court of Claims of New York

Date published: May 4, 2012

Citations

# 2012-040-034 (N.Y. Ct. Cl. May. 4, 2012)