Opinion
# 2019-053-556Motion No. M-94505
12-09-2019
JOSHUA WITTMEYER v. STATE OF NEW YORK
DOLCE PANEPINTO, P.C. BY: Anne M. Wheeler, Esq. HON. LETITIA JAMES New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General
Synopsis
Movant's motion seeking permission to file and serve a late claim is granted as the majority of the statutory facts weigh in movant's favor and the proposed claim has the appearance of merit.
Case information
| UID: | 2019-053-556 |
| Claimant(s): | JOSHUA WITTMEYER |
| Claimant short name: | WITTMEYER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-94505 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | DOLCE PANEPINTO, P.C. BY: Anne M. Wheeler, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 9, 2019 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant Joshua Wittmeyer moves the Court for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). According to the proposed claim, movant was injured when he stepped off the bus he was operating and stepped into a "crack, depression or similar defect in the surface of the parking lot/driveway" at the New York State Office for People with Developmental Disabilities (OPWDD), "thereby causing him to fall and sustain serious injuries." At the time of the incident, movant was dropping off a resident of OPWDD at its group home. Defendant opposes the motion.
Movant's original motion was filed on August 27, 2019. On September 10, 2019, movant filed an amended motion to correct certain clerical errors in his original motion papers. --------
A motion for permission to file and serve a late claim must be brought "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" (Court of Claims Act § 10 [6]). A negligence action against a private citizen would have to be commenced within three years of accrual of the claim (CPLR 214). Accordingly, a motion for permission to late file a negligence claim must be brought within three years of accrual of the negligence. Here, the negligence occurred on May 17, 2019, when movant fell and was injured. The present motion is timely as both the original motion and the amended motion were filed within three years of the alleged negligence.
The Court of Claims is vested with broad discretion to grant or deny permission to late file a claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In determining whether to grant permission to late file a claim, the Court must 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 [movant] has any other available remedy" (Court of Claims Act § 10 [6]). The enumerated statutory factors are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant argues that the delay was excusable as he was unaware of the seriousness of his injuries due to an initial mis-diagnosis, and that he thought Workers' Compensation was his sole remedy. To the extent that movant may have misunderstood his legal remedies, ignorance of the law is not a reasonable excuse for failure to timely file a claim (Innis v State of New York, 92 AD2d 606 [2d Dept 1983] affd 60 NY2d 654 [1983 ]; Chinitz v State of New York, UID No: 2006-028-511 [Ct Cl, Sise, P.J., Jan. 17, 2006]). The lack of an excusable delay, however, is only one of the factors to be considered.
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movant argues that two New York State employees of OPWDD assisted him after the incident and had knowledge and an opportunity to investigate. Defendant's opposing papers include an affidavit by Luke King, an employee of OPWDD who was helping a resident off the bus at the time of the incident. It appears that the defendant had at least one employee and probably more at the scene at the time of the incident and, thus, had knowledge and an opportunity to investigate. Where, as here, the defendant had notice and an opportunity to investigate and there was only a minimal delay between the expiration of the statutory commencement period and the filing of this motion, there can be no prejudice to the State (Matter of Lockwood v State of New York, 267 AD2d 832 [3d Dept 1999]).These three factors weigh in favor of movant's motion.
The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). While this standard places a heavier burden upon a party who has filed late, this standard does not require movant to establish the merit of his claim or to overcome all legal objections before the Court will permit the filing of a late claim (Id. at 11-12.).
Defendant argues that the proposed claim does not have the appearance of merit. In support, it attaches the affidavit of Mr. King, an employee of OPWDD who was present at the time of the incident. According to his affidavit, Mr. King can only "assume" that the movant fell down the stairs of the bus as he observed no defects on the driveway. The affidavit of Mr. King raises questions of fact which are best resolved by motion for summary judgment or trial following discovery. Based on the evidence provided, this Court cannot conclude that the proposed claim is groundless, frivolous or legally defective. Rather, movant has, at least, established that the proposed claim has the appearance of merit. This factor weighs in favor of movant's motion.
Another factor to consider is whether movant has any other available remedy. Movant argues that any Workers' Compensation potential benefits will not fully compensate him for his pain and suffering or for his lost wages. Notwithstanding, Workers' Compensation benefits are a partial alternative remedy (Matter of Smith v State of New York, 63 AD3d 1524 [4th Dept 2009]).This factor weighs against movant's motion.
The Court concludes that the majority of the statutory factors weigh in favor of granting movant's motion for late claim relief. Accordingly, movant's motion no. M-94505 is granted and movant is directed to file and serve the proposed claim in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within sixty (60) days of the filing of this Decision and Order.
December 9, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Amended notice of motion and amended affirmation of Anne M. Wheeler, Esq. dated September 9, 2019, with annexed Exhibits A-B; and 2. Opposing affidavit of Assistant Attorney General Wendy E. Morcio, Esq. sworn to November 12, 2019, with annexed Exhibits A-B.