Opinion
# 2013-049-010 Motion No. M-82556
02-22-2013
IN THE MATTER OF THE CLAIMS OF YU YING YANG, as Administratrix of the Estate of XIAM TUAN YANG, And YU YING YANG, INDIVIDUALLY v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY
Synopsis
The Court granted leave to file a late claim with respect to defendant New York State Thruway Authority, but denied leave with respect to the State of New York.
Case information
UID: 2013-049-010 IN THE MATTER OF THE CLAIMS OF YU YING YANG, as Claimant(s): Administratrix of the Estate of XIAM TUAN YANG, And YU YING YANG, INDIVIDUALLY Claimant short YANG name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): None Motion number(s): M-82556 Cross-motion number(s): Judge: DAVID A. WEINSTEIN Claimant's Dinkes & Schwitzer, P.C attorney: By: Andrea M. Arrigo, Esq Defendant's Eric T. Schneiderman, NYS Attorney General attorney: By: Cheryl Rameau, Assistant Attorney General Third-party defendant's attorney: Signature date: February 22, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Movant Yu Ying Yang, as Administratix of the estate of Xian Tuan Yang ("decedent"), moves this Court for permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6), or in the alternative to have the Court deem a notice of intention appended by movant to have been "timely served and filed nunc pro tunc." The proposed verified claim alleges that on Saturday March 12, 2011, decedent was a passenger on a vehicle owned by World Wide Travel of Greater New York, Ltd.At approximately 5:39 a.m., on Interstate 95 in the vicinity of mile marker 3.2, the vehicle struck the guide rail,"rolled or partially overturned," and hit an overhead sign post (the "accident" or the "March 12 accident") (Aff. in Supp. ¶ 5), resulting in decedent's death. The proposed claim states that the portion of the roadway where the accident took place was constructed, supervised, maintained, inspected, repaired and owned by the State of New York "and/or" the New York Thruway Authority (the "Thruway Authority") (Aff. in Supp. Ex. 1 ¶ 3), and names both as defendants. Among other things, movant asserts that both the State and Thruway Authority were responsible for the construction and maintenance of guide rails, and failed in various ways to properly design and construct such rails and other barriers (id.).
The motion and proposed claim refer alternatively to the owner as World Wide Tours of Greater NY, Ltd.
Claimant uses both the term "guide rail" and "guard rail" in its submissions, and appears to do so interchangeably.
The present application is supported by an affirmation of counsel, and an affidavit by movant. In the latter, movant states that decedent was her father, he was a passenger on the day in question, and he died as a result of the accident (Cl. Aff. in Supp. ¶ 2). The motion papers also append several documents, including exhibits to the proposed claim (a police report, letters of administration and death certificate), a Notice of Intention to File a Claim dated October 23 but which movant does not allege to have served, and a report on the accident issued June 5, 2012, prepared by the National Transportation Safety Board ("NTSB").
The NTSB report sets forth a list of "[s]afety issues identified in his accident," which includes the following:
"Roadside barriers for heavy commercial passenger vehicles: The NTSB evaluated roadside conditions at the accident site to determine the guardrail characteristics necessary to shield the vertical highway signpost. Examination of available research and testing methods for barriers reveals that guidance given to the states on upgrading barrier systems is inadequate. In addition, there is a clear need nationwide for higher performance traffic barriers to redirect heavy commercial vehicles and motorcoaches. New barrier performance standards are needed along with, possibly, new barrier designs with height and deflection characteristics capable of safely redirecting heavy commercial passenger vehicles from point hazards" (Aff. in Supp. Ex. 3 at pp. viii-ix).
The report goes on to state that the "probable cause' of the accident was the driver's failure to control the vehicle due to fatigue, but that there were several "contributing causes" to the accident and its severity (id. at pp. viii- ix). Of specific relevance to this motion, the report says that "a guardrail that was not designed to redirect the heavy vehicle and [that] did not prevent it from colliding with the vertical highway signpost" contributed to the accident's severity, and that the "extensive intrusion of the vertical highway signpost into the passenger compartment" contributed "to the severity of passenger injuries" (id. at p. ix). Finally, NTSB reported that the Thruway Authority has jurisdiction over the accident location (see Arrigo Aff. Ex. 3 at pp. 16-17 ["The motorcoach accident occurred on I-95 south . . . a mile marker 3.2 . . . . The New York State Thruway Authority . . . has jurisdiction of the New England Thruway between the Pelham Parkway at mile marker 0.0 and . . . mile marker 15.0"]).
Defendant has responded to the motion via the affirmation of Assistant Attorney General Cheryl Rameau. The affirmation states that the accident site is under the jurisdiction of the Thruway Authority, not the State of New York (Aff. in Opp. ¶ 8). Movant does not contest this assertion, but says in a reply affidavit: "Respondent . . . argues that this matter should be denied as to the State of New York[,] claiming that Interstate 95 is under the jurisdiction of the Thruway Authority . . . Here, movant is also requesting permission to file a late notice claim against the . . . Thruway Authority" (Reply ¶ 8).
Discussion
The late claim application at issue was filed within the relevant statute of limitations, and the Court therefore has jurisdiction to grant relief under section 10 (6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those factors are whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the movant has any other available remedy. The statutory factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling (id.).
As noted, movant also asks that a notice of intention attached to the claim be deemed to have been served and filed timely. There is no provision in the Court of Claims Act that would allow for such relief.
In regard to the excuse for delay, Yang's counsel contends that it did not timely file a claim because, while the statutory time period elapsed, the accident and any role played therein by respondents was under investigation by NTSB(Aff. in Supp. ¶ 8). The existence of such investigation may provide some legitimate excuse for the delay (cf. 47-Albany Troy Rd. Corp. v State of New York, 32 Misc 2d 255 [Ct Cl 1962], affd 17 AD2d 892 [3d Dept 1962] [granting leave to file late claim following investigation; "the determination of [the damage's] cause and full extent could not have been determined until after the [investigative] steps heretofore recited on the part of the claimants had been taken"]). Nonetheless, movant's excuse does not fully explain her delay in commencing the present action, for two reasons. For one thing, as respondents point out, Yang could have served a timely notice of intention, which would not have required the specificity needed to file a full blown action, but would nonetheless have preserved her ability to file within the requisite period without initiating an immediate lawsuit. Further, even after the investigatory report was published on June 5, 2012, movant delayed over five months more before submitting the present motion, and thus her delay cannot be attributed solely to the investigation (cf. Roberts v State of New York and Roswell Park Cancer Institute, UID No. 2008-034-522, n 6 [Ct Cl, Hudson, J., June 12, 2008] [noting, in finding no valid excuse for purposes of late claim application under General Municipal Law § 50-e (5) based on claimant's assertion that it had delayed action to await outcome of state investigation, that claimant delayed over a year in filing motion]). Under these circumstances, I find that this factor weighs marginally against movant.
Yu Ying Yang was issued Letters of Administration by the Surrogate's Court of the County of New York, on May 10, 2011 (Ex. B to the Proposed Claim). Court of Claims Act § 10 (2) provides:
"A claim by an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused, shall be filed and served upon the attorney general within ninety days after the appointment of such executor or administrator, unless the claimant shall within such time serve 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 the attorney general within two years after the death of the decedent. In any event such claim shall be filed and served upon the attorney general within two years after the death of the decedent."
Since neither a notice of intention was served, nor a claim was served and filed, within 90 days after the appointment the administratix, late claim relief is necessary before movant may bring a claim in this matter.
Whether respondents had notice of the essential facts, had an opportunity to investigate, and would be prejudiced by the granting of this application are closely related and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). In this instance, these factors clearly tip in movant's favor, and respondent does not argue otherwise. The March 12 accident was well-publicized, and as noted, the subject of a federal investigation. Moreover, another passenger on the bus served a Notice of Intention to File a Claim within the statutory 90-day period upon both the Thruway Authority and the State of New York, clearly placing them on notice of the need to investigate(Yao v State of New York and the New York State Thruway Authority, claim No. 121024; see also Marciano v State of New York, UID No. 2012-049-003 [Ct Cl, Weinstein, J., Feb. 7, 2012] ["a claim has been timely filed against the State by another passenger in one of the vehicles involved in the same accident, which should have provided ample notice of the accident to the State"]). The State, therefore, had ample notice of the events at issue in this claim, and an opportunity to investigate them. And it has not articulated any prejudice that resulted from Yang's delay in commencing this suit.
The papers submitted on this motion do not reference the Yao claim or the numerous other actions filed in this Court that arise out of the March 12 accident, but I take judicial notice of such filings (see Starbase II Partners v Sloan, 243 AD2d 309 [1st Dept 1997] [court may take judicial notice of contents of pleading]); Matter of Hartman v Joy, 47 AD2d 624, 625 [1st Dept 1975] [court may take judicial notice of existence of action in another court]).
As to the appearance of merit, that factor is assessed under the standard set forth in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To appear meritorious, a claim "must not be patently groundless, frivolous, or legally defective," and the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (id. at 11). In applying this standard, "the court looks at all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of 'apparent merit' and is not confined to the text of the proposed claim itself" (Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A] [Ct Cl 2006]).
Here, Yang bases her contention that the claim meets the "apparent merit" standard on the NTSB report (Aff. in Supp. ¶ 11). As noted above, that report states, inter alia, that the guardrail design contributed to the severity of the accident, and that the Thruway is responsible for the section of highway where the accident occurred (see supra p. 3). Respondents essentially concede that the Thruway's Authority controlled this stretch of road, as Rameau avers that the relevant location "is under the jurisdiction of the Thruway Authority of the State of New York, and not the State of New York" (Aff. in Opp. ¶ 8). For that reason, she argues that "[t]he application should be denied as to the State" (id.) - but is silent as to the Thruway Authority. Conversely, movant does not present any reason why the proposed claim is meritorious against the State.
In light of these submissions, I find that the claim has the appearance of merit against the Thruway Authority, but does not as regards the State of New York.
In making this finding, I need not determine whether the NTSB report will ultimately be admissible, in whole or in part, particularly as there has been no objection to its consideration by the State and Thruway Authority (see Ledan v State of New York, UID No. 2009-030-554 [Ct Cl, Scuccimarra, J., Sept. 17, 2009] ["As each application for late claim relief is considered in the Court's discretion, no hard and fast requirement of a particular kind of proof is mandated"]). Nothing in this decision should be read to intimate any determination, one way or another, on this question (see Cramer v Kuhns, 213 AD2d 131 [3d Dept 1995] [noting lack of definitive rule on admissibility of government investigative report under New York law]); Fruit and Vegetable Supreme, Inc. v The Hartford Steam Boiler Inspection & Ins. Co. 28 Misc 3d 1128 [Sup Ct, Kings County 2010] [same]).
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Finally, as to an alternative remedy, respondent notes that movant has already filed a Supreme Court action against the driver and owner of the bus company (Aff. in Opp. ¶ 9). In response, movant avers that this other action should "not be a bar" to the present suit, which asserts "additional theories" (Reply ¶ 9). Indeed, it would appear from the submissions before me that the basis for liability against the Thruway Authority (its alleged failure to construct adequate barriers) is entirely different from that asserted against the driver and bus company (among other things, the former's fatigue and the latter's alleged failure to adequately ensure the bus was driven safely). Thus, the remedy provided by the Supreme Court action may only be a partial one (see Marciano, supra [movant has only a partial remedy in Supreme Court action where "it is possible that claimant could have a meritorious claim of negligence [against the State in the Court of Claims] action, but not against the driver in its Supreme Court case"]). Under these circumstances, the possibility of recovery in another forum weighs, at best, marginally in respondents' favor (see Archambault v State of New York, UID No. 2010-042-535 [Ct Cl, Siegel, J., Dec. 21, 2010] [where alternative remedy does not address negligent conduct by State, it is "incomplete" and weighs in favor of neither party]); see also Matter of Smith v State of New York, 63 AD3d 1524 [4th Dept 2009] [granting late claim application, notwithstanding presence of partial remedy]; Matter of Lockwood v State of New York, 267 AD2d 832 [3d Dept 1999] [same]).
In light of the foregoing, I conclude that the balance of factors tips in favor of movant in regard to its claim against the Thruway Authority, but against movant in regard to its claim against the State of New York (see Yeh v State of New York and the New York State Thruway Auth., Motion No. M-81950 [Ct Cl, Soto, J., Nov. 30, 2012] [allowing late claim arising out of March 12 accident to proceed against Thruway Authority, but not against State]).
Accordingly, having reviewed the submissions and having considered all of the factors enumerated in the Court of Claims Act § 10 (6), IT IS ORDERED that motion No. M-82556 be granted to the extent it seeks leave to file a late claim against the Thruway Authority, and that within thirty (30) days of the filing of this Decision and Order, movant shall serve and file a properly verified claim in the form of the proposed claim annexed as exhibit 1 to his moving papers, entitling it Claim, and naming the Thruway Authority as the only defendant and omitting any allegations against the State of New York. In serving and filing the claim, movant shall comply with all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a.
The motion is denied in all other respects.
February 22, 2013
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Order to Show Cause, Attorney Affirmation in support, and annexed exhibits.
2. Defendant's Affirmation in Opposition.
3. Claimant's Reply Affirmation.