Opinion
# 2013-009-018 Motion No. M-82985
07-08-2013
FREDERICK A. WOOD v. THE STATE OF NEW YORK
Synopsis
Claimant's application for permission to serve and file a late claim was granted.
Case information
UID: 2013-009-018 Claimant(s): FREDERICK A. WOOD Claimant short WOOD name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote The Court, sua sponte, has amended the caption to reflect the (defendant name) State of New York as the only proper defendant before this : Court. Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-82985 Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. SCHLATHER, STUMBAR, PARKS & SALK, LLP Claimant's attorney: BY: Jeffrey D. Walker, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: Bonnie G. Levy, Esq., Assistant Attorney General, Of Counsel. Third-party defendant's attorney: Signature date: July 8, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant has brought this motion seeking permission to serve and file a late claim.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Attorney's Affidavit, with Exhibits 1, 2
Affirmation in Opposition 3
Attorney's Reply Affidavit, with Exhibit 4
In his proposed claim (see Exhibit 1 to Item 4), claimant seeks damages for personal injuries suffered by him on or about August 25, 2012, when he tripped and fell over a rise in the pavement of New York State Route 79 as he was attempting to cross that street at or near its intersection with Tioga Street in the City of Ithaca.
In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in section 10 (6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim 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 meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]).
With regard to excuse, claimant's attorney affirms that he originally believed that the City of Ithaca, and not the State of New York, controlled the area of the roadway where claimant tripped and fell, and that a prior notice of claim was filed against the City of Ithaca in September 2012. It was not until December 2012 that claimant's attorney was advised that the State controlled that particular area of the roadway, and that paving work had been performed by the Department of Transportation in this location shortly before this incident. Claimant's attorney affirms that once he confirmed the City's allegation that it was the State who performed the re-paving work at issue herein, he promptly made this application seeking permission to serve and file a late claim.
It is well settled, however, that a mistake in identifying the proper party is not a legally acceptable excuse for failing to timely serve and file a claim (Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]).
The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. In the papers submitted in support of this application, there is no indication that the State had notice of the essential facts constituting this claim, nor did it have an opportunity to investigate the circumstances underlying the claim. Claimant, however, alleges that the State Department of Transportation had created the allegedly defective condition in the roadway during a paving and resurfacing project that concluded one or two months prior to the incident. Claimant further alleges that the Department of Transportation then took remedial measures on the defective condition approximately two months after this incident. Assuming these allegations to be true, for the limited purpose of evaluating this late claim application, the Department of Transportation presumably has work records relating to these projects, and therefore the State would not be substantially prejudiced should it have to defend this claim.
The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
In essence, claimant alleges that the State created an unsafe condition in the roadway where the incident occurred during a re-paving project, and that this defective condition was a proximate cause of claimant's trip and fall on August 20, 2012. The Court finds that such allegations are sufficient to meet the minimal standards imposed by Santana, and that claimant has therefore asserted a meritorious claim for purposes of this application.
It does not appear that claimant has any other available remedy.
The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]), and none of the factors can require denial as a matter of law.
Accordingly, after a review of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act § 10 (6), it is the opinion of this Court that claimant should be allowed to serve and file his proposed claim.
Therefore, it is
ORDERED, that Motion No. M-82985 is hereby GRANTED; and claimant is directed to file and serve a properly verified claim within 45 days from the date of filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.
July 8, 2013
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims