Opinion
# 2019-045-025 Motion No. M-93537
09-20-2019
MARY CALLAHAN v. THE STATE OF NEW YORK
The Bongiorno Law Firm, PLLC By: John N. Miras, Esq. and Keri Lynn Timlin, Esq. Hon. Letitia James, Attorney General By: Alex J. Freundlich, Assistant Attorney General
Synopsis
Motion to file a late claim. Motor vehicle accident, question as to serious injury/ threshold.
Case information
| UID: | 2019-045-025 |
| Claimant(s): | MARY CALLAHAN |
| Claimant short name: | CALLAHAN |
| 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-93537 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | The Bongiorno Law Firm, PLLC By: John N. Miras, Esq. and Keri Lynn Timlin, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Alex J. Freundlich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 20, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion; Claimant's Affidavit in Support with annexed Exhibits A-C; Defendant's Affirmation in Opposition with annexed Exhibits 1-5; and Claimant's Reply Affirmation.
Claimant, Mary Callahan, has brought this motion pursuant to Court of Claims Act (CCA) § 10 (6) seeking an order granting permission to file a late claim. Defendant, the State of New York, opposes the motion.
Claimant alleges that on November 21, 2017 she was driving on State Route 110 in the middle lane near Northern State Parkway, Exit 40W, when a light pole fell and struck her vehicle. The light pole was caused to fall when a tractor, owned and operated by defendant, struck the light pole. At the time of the accident, the tractor was being operated on the grassy area next to State Route 110 near Northern State Parkway, Exit 40W in the Town of Huntington, County of Suffolk.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.
Claimant does not offer any legally acceptable excuse for the delay in filing the claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.
The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. The Court finds that, given the entirety of the circumstances involved in the present action, these factors weigh in claimant's favor.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order for a claim to "appear to be meritorious": (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).
Defendant argues that the claim lacks merit because it fails to comply with Court of Claims Act § 11 (b) since it does not state claimant's injuries and does not state the time of the accident. Additionally defendant contends that claimant's motion should be denied since she did not bring her claim pursuant to a specific serious injury category under Insurance Law § 5012.
Court of Claims Act § 11 (b) requires in pertinent part that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained." These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 [2007]).
Claimant through her attorney's affirmation represents that she "sustained devastating head injuries as a result of the November 21, 2017 incident, including, but not limited to a traumatic brain injury, loss of her primary senses (hearing and taste), and a concussion." However, the Proposed Claim merely states that claimant "sustained serious, painful and permanent disabling injuries in and about the head, neck and back." Thus, claimant ascertained, to a significant degree, the extent of her injuries prior to preparing the Proposed Claim. Additionally, the Proposed Claim is silent as to the time of the accident.
The Court cannot permit the filing of a claim which does not meet the jurisdictional requirements of Court of Claims Act § 11 (b). Claimant's failure to include the time when the accident occurred in the Proposed Claim runs afoul of this jurisdictional requirement (Lepkowski v State of New York, 1 NY3d 201 [2003]; Matter of DeMairo v State of New York, 172 AD3d 856 [2d Dept 2019]; Hargrove v State of New York, 138 AD3d 777 [2d Dept 2016]; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]; Czynski v State of New York, 53 AD3d 881 [3d Dept 2008]). "Lack of prejudice to the State is immaterial and a court is without power to dispense with applicable jurisdictional requirements of law based upon its own concepts of justice" (DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept 2019]). Similarly, given the facts of this case, claimant's failure to state the injuries she claims to have sustained in the accident renders the Proposed Claim jurisdictionally defective (id.).
Defendant argues that claimant has failed to set forth a serious injury sufficient to meet the requirements of Insurance Law § 5012 (d).
Insurance Law § 5102(d) defines a "serious injury" as:
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
The Proposed Claim briefly states general, conclusory statements regarding claimant's injuries from which the Court is unable to determine whether they meet the serious injury threshold for sustaining a cause of action. Additionally claimant's injuries are not self-evident from the medical records nor has causation of her injuries been demonstrated. Claimant's representations through her attorney's affirmation are insufficient to overcome these deficiencies. "An affidavit or affirmation containing a showing of evidentiary facts by a physician competent to attest to the extent of injury should generally be submitted in this context" (Matter of Edwards v State of New York, 119 Misc 2d 355, 357 [Ct Cl 1983]). Consequently, the Court finds that claimant has failed to establish that the claim has the appearance of merit (see Matter of Edwards v State of New York, 119 Misc 2d 355 [Ct Cl 1983]; Delacruz v State of New York, UID No. 2018-018-927 [Ct Cl, Fitzpatrick, J., April 6, 2018]; Melendez v State of New York, UID No. 2016-049-032 [ Ct Cl, Weinstein, J., Aug. 17, 2016]; Richards v State of State of New York, UID No. 2006-036-504 [Ct Cl, Schweitzer, J., March 27, 2006])
Lastly, given the facts as currently put forth, it does not appear as though claimant has another viable alternative remedy.
Therefore, based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10(6), the motion to file a late claim is denied without prejudice to claimant's ability to file a second late claim application, within the applicable statute of limitations period, supported by sufficient papers.
September 20, 2019
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims