Opinion
# 2019-015-146 Claim No. NONE Motion No. M-93798
05-17-2019
BRENDA MCDERMOTT INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF KEVIN H. MCDERMOTT v. STATE OF NEW YORK
Martin, Harding & Mazzotti, LLP By: Cassandra A. Kazukenus, Esq. Honorable Letitia James, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General
Synopsis
Motion for late claim relief was denied where factors for the Court's consideration did not weigh in movant's favor. In particular, proposed claim alleged negligent roadway design and neither expert proof nor evidence of a dangerous condition was submitted in support of the motion.
Case information
| UID: | 2019-015-146 |
| Claimant(s): | BRENDA MCDERMOTT INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF KEVIN H. MCDERMOTT |
| Claimant short name: | MCDERMOTT |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-93798 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Martin, Harding & Mazzotti, LLP By: Cassandra A. Kazukenus, Esq. |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 17, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, Brenda McDermott, individually and as Administratrix of the Estate of Kevin H. McDermott, seeks leave to file and serve a late claim for the pain and suffering of her husband, Mr. McDermott, prior to his death on August 3, 2018.
Movant does not seek permission to file a wrongful death claim. The administratrix of the decedent's estate was only recently appointed on April 1, 2019 and the Court has been informed that a wrongful death claim relating to this accident has been filed and assigned claim No. 132946.
On July 20, 2018 at approximately 4:23 p.m. Kevin H. McDermott was operating a motorcycle in an easterly direction on State Route 443 in Berne, New York. At or about the same time, Rene M. Descartes was operating a motor vehicle in a northerly direction on County Route 1. The uncertified police report contains the following description of the accident:
"V2 [Descartes] was making a left hand turn onto SR 443 heading westbound when V1 [McDermott] drove around a blind corner, and lost control of his motorcycle. V1 locked his brakes causing him to swerve down the eastbound lane, eventually tipping over at the intersection. Driver of V1 sustained a head injury and was transported to Albany Medical Center via helicopter. V1 was ridden from the scene by a third party" (movant's Exhibit A).
According to movant's counsel, the police report indicates that "an apparent contributing factor to the accident was 'view obstructed/limited' . . . [which] was designated an 'environmental' factor, as opposed to a 'human' or 'vehicular' factor pursuant to the report" (Kazukenus affirmation, ¶ 12). In addition, movant's counsel states that the police report reflects both the absence of traffic control devices at the intersection and that the character of the roadway includes a " 'curve at hillcrest' " (id.). The key necessary to interpret the codes entered on the police report was not, however, provided as part of the movant's submissions.
In the proposed claim, movant alleges the Department of Transportation (DOT) improperly constructed, repaired, designed and inspected the intersection of State Route 443 and County Route 1 in failing to ensure proper sight distances at the intersection of Route 443 and County Route 1; creating, constructing and maintaining obstructive vegetation at the intersection; establishing an inappropriate speed limit for the roadway; failing to correct the unsafe geometry of the intersection and failing to install and/or maintain proper signage.
In support of the motion for late claim relief, movant references an article published by ABC News 10 on August 20, 2018 in which the "dangerous and hazardous" conditions at the intersection are discussed in relation to the closure of the Fox Creek bridge and its affect on traffic in the nearby area. Movant also submits responses to its various requests under the Freedom of Information Law (FOIL). One such response included a letter from a resident of the area dated August 3, 2018 and addressed to Commissioner Paul A. Karas of the DOT and Commissioner Lisa M. Ramundo of the Albany County Department of Public Works. The letter references the McDermott accident, the "notoriety of this intersection," the 55 mile-per-hour speed limit on Route 443, and the "limited sight distance as the intersection is hidden by a hill" (movant's Exhibit K). The letter's author suggests the current 55-mile-per-hour speed limit on Route 443 could be reduced in the area and recommends "lighted blinking warning/caution signs facing eastbound Route 443 motorists approaching this limited sight intersection and a blinking caution light overhead emphasizing that they should slow down as they enter this dangerous intersection" (movant's Exhibit K). The author of the letter also states that northbound motorists turning left onto Route 443 have "no ability to see eastbound traffic on Route 443 because of the hill" and "[c]rossing it is basically a crap shoot" (id.).
Mark Pyskadlo, Regional Traffic Engineer for DOT, responded to the letter on September 18, 2018 stating that the Traffic Safety and Mobility group had completed its review of the intersection (movant's Exhibit M). In his correspondence, Mr. Pyskadlo acknowledged that "the sight distance for eastbound motorists on Route 443 to motorists attempting to enter from CR 1 is limited" (id.). He also provided the intersection accident history for the eight-year, five-month period between March 1, 2011 and August 31, 2018 stating "[t]here were 10 reported accidents in the vicinity of the intersection, with 5 occurring at the intersection over this period of time" (id.). He went on to relate that, based on its review of the subject intersection, DOT determined that neither a flashing signal nor flashing lights on signs approaching the intersection were warranted. Mr. Pyskadlo did indicate that the DOT would arrange for a left-side intersection warning sign to be installed adjacent to the existing right-side warning sign, and would "add reflective strips to the supports and permanent orange markers on the top of the left and right-side intersection warning signs to emphasize the potential for a vehicle exiting or entering Route 443 from CR1" (movant's Exhibit M). DOT also reviewed the area for a possible speed limit reduction, ultimately concluding no such reduction was necessary. According to Mr. Pyskadlo, "[i]n these circumstances, the most appropriate signing method is to post warning signs such as curve warning with reduced advisory speed panels and intersection warning signs" (id.). Mr. Pyskadlo had previously noted that curve-warning signs and advisory speed panels were already in place for eastbound traffic approaching the intersection on Route 443.
An Accident Location Information System (ALIS) report provided to movant's counsel by the Albany County Department of Public Works (Kazukenus affirmation, ¶ 17; movant's Exhibit N) is also submitted. While the report itself states that it covers the period May 1, 2015 through August 20, 2018, it also indicates complete data is only available through April 30, 2018 (see movant's Exhibit N). The diagram in the ALIS report reflects two accidents, including the subject accident, at or near the intersection of State Route 443 and County Route 1 and three other accidents in the vicinity. The only data provided, however, was with respect to the subject accident and accidents which occurred on May 25, 2015 and November 19, 2016. The May 25, 2015 accident involved a collision with an animal on a straight and level segment of Route 443 west of the subject intersection, and the November 19, 2016 accident involved a southbound vehicle making a left turn in which failure to yield the right-of-way and driver inattention were the noted causes. A Crash Rate report for the subject intersection was also provided by the Albany County Department of Public Works (movant's Exhibit O). This report reflects two crashes for the period May 1, 2015 through August 20, 2018. The crash rate was 1.0, which is above the .35 average for rural four-leg intersections. However, it was noted in the report that "[t]he crash rate is numerically high because the traffic volumes are low, so each crash has a large effect on the rate" (id.).
The report is not a certified business record and it is unknown who created the report.
The Crash Rate report is not a certified business record and it is unknown who created the report.
Also submitted in support of movant's motion is a FOIL response from the Town of Berne (movant's Exhibits R and S). The response includes various correspondence designating a portion of County Route 1 as a restricted access highway, confirming a reduction of the speed limit in a school zone somewhere on State Route 443, describing the addition of speed limit signs on various roads near State Route 443 and, finally, correspondence reflecting a request for a reduction in the speed limit on Route 443 between the Hamlets of Berne and East Berne and the denial thereof based on the performance of several traffic studies.
Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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 claimant has any other available remedy."
The first issue for determination upon a late claim motion is whether the application is timely. Section 10 (6) requires that a motion to file a late claim be made "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." A personal injury action against a citizen of the State is governed by a three-year statute of limitations (CPLR § 214 [5]). Consequently the instant motion filed on April 17, 2019 is timely with respect to movant's proposed cause of action.
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Matter of Barnes v State of New York, 158 AD3d 961, 962 [3d Dept 2018]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Barnes v State of New York, 164 AD3d 977, 978 [3d Dept 2018]; Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Matter of Martinez v State of New York, 62 AD3d 1225 [3d Dept 2009]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
Movant states in an affidavit submitted in support of the motion that she first contacted her attorneys on or about December 19, 2018 (McDermott affidavit, ¶ 13). Until that time, movant was unaware of the 90-day time limitation governing personal injury claims (id.). It is well settled, however, that ignorance of the law is not a reasonable excuse for failing to serve and file a timely claim (Borawski v State of New York, 128 AD3d 628 [2d Dept 2015]; Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]). Moreover, movant's counsel's additional four-month delay in seeking late claim relief is unexplained. Inasmuch as movant could have preserved her rights by merely serving a notice of intention to file a claim within 90 days of the accident, this factor weighs against granting late claim relief (see Court of Claims Act § 10 [3]).
Addressing the intertwined issues of notice, opportunity to investigate and prejudice, movant contends the State not only had notice and an opportunity to investigate the claim, but also that an investigation of the safety of the intersection was in fact performed subsequent to the subject accident. Indeed, the correspondence submitted by movant's counsel includes a local resident's letter, dated two weeks after the accident, outlining what he deemed to be sight-distance problems and providing various recommendations (movant's Exhibit K). In response, the DOT performed an investigation of the intersection and memorialized its conclusions and recommendations in Mr. Pyskadlo's correspondence dated September 18, 2018. Given the DOT's investigation into the safety of the intersection shortly after the subject accident, no prejudice will befall the State in the event late claim relief is granted. These factors weigh in movant's favor.
With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective, and the record as a whole provides reasonable cause to believe a valid cause of action exists (Matter of Martinez v State of New York, 62 AD3d 1225, 1227 [3d Dept 2009]; Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). The proposed claim here is premised on the assertion the State failed to properly design and maintain the roadway where the accident occurred in light of the limited sight distance at the intersection. The law is well settled that the State has a nondelegable duty to maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]). While the State is immune from liability for highway planning decisions involving the exercise of expert judgment (Weiss v Fote, 7 NY2d 579, 589 [1960], rearg denied 8 NY2d 934 [1960]), this immunity may be overcome by a showing that the plan adopted "evolved without adequate study or lacked reasonable basis" (Weiss, 7 NY2d at 589; see also Affleck v Buckley, 96 NY2d 553, 557 [2001]; Alexander v Eldred, 63 NY2d 460, 466 [1984]). Moreover, "[o]nce the State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger. . . . [and] after the State implements a traffic plan it is 'under a continuing duty to review its plan in the light of its actual operation' " (Friedman v State of New York, 67 NY2d at 284, quoting Weiss v Fote, 7 NY2d at 587). When such a review is performed, a reasoned determination by the State that certain precautionary measures are unnecessary may not form the basis of liability (id. at 286). However, absent the performance of a safety study, ordinary rules of negligence apply and movant need prove only that a dangerous condition was a proximate cause of the accident (Brown v State of New York, 31 NY3d 514, 519 [2018]).
With regard to the instant motion, while a review of the intersection was conducted subsequent to the subject accident in response to a citizen's complaint, there is no evidence of any similar review or study occurring prior thereto. Rather, movant appears to proceed on the theory that the State had notice of the existence of a dangerous condition but failed to undertake necessary action to correct it. However, the information provided includes only one accident at this intersection in the three-year period preceding the subject accident and the details of that accident are not disclosed. Absent expert opinion evidence establishing the existence of a dangerous condition and what steps should have been taken to correct it, the Court is unable to evaluate the potential merit of the claim. There is no expert proof demonstrating that the intersection was not designed or maintained in accordance with standards existing at the time of its construction (see Pagano v New York State Thruway Auth., 235 AD2d 409 [2d Dept 1997], lv denied 90 NY2d 804 [1997]) and there is no expert proof that the accident could have been avoided had the State implemented additional safety measures (see Klingler v State of New York, 213 AD2d 378 [2d Dept 1995]; Langner v State of New York, 65 AD3d 780 [3d Dept 2009]). Such matters are not within the ordinary experience and knowledge of lay persons and expert opinion evidence is required to demonstrate the potential merit of the claim (Fiore v Galang, 64 NY2d 999 [1985]; Decker v State of New York, 164 AD3d 650 [2d Dept 2018]; Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002]; Matter of E.K. v State of New York, 235 AD2d 540 [2d Dept 1997], lv denied 89 NY2d 815 [1997]; Estrada v State of New York, Ct Cl, April 19, 2018, Mignano, J., claim No. None, UID No. 2018-029-039; Mejia v State of New York, Ct Cl, Mar. 9, 2016, Weinstein, J., claim No. 126901, UID No. 2016-049-006; Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl, 1992]; cf. Matter of Morales v State of New York, 292 AD2d 455 [2d Dept 2002] [expert's affidavit of merit was unnecessary where highway design standards indicated utility pole was within the clear zone]; Wong v The State of New York and The New York State Thruway Authority, Ct Cl, Dec. 5, 2012, Scuccimarra, J., claim No. None, UID No. 2012-030-587 [Ct Cl 2012] [in highway design case, affirmation of layperson coupled with reports and findings of investigative bodies, including the State of New York, provided reasonable basis to conclude that a valid cause of action existed]). In the absence of expert opinion evidence or any other proof of a deviation from the applicable standards of care, movant failed to establish the potential merit of her claim.
Unreported decisions from the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us.
As for the final factor to be considered, although the Court has not been apprised of what specific alternative remedies may be available, it does appear that movant has alternative remedies through the initiation of a lawsuit in the Supreme Court.
Insofar as the majority of factors do not weigh in movant's favor, the Court must deny the motion. Movant may renew her application for leave to file and serve a late claim so long as it is supported by appropriate expert proof.
Based on the foregoing, the motion for leave to serve and file a late claim is denied with leave to renew upon a proper showing.
May 17, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion dated April 11, 2019; 2. Affirmation of Cassandra A. Kazukenus, Esq. dated April 11, 2019, with Exhibits A-V; 3. Memorandum of Law dated April 11, 2019; 4. Affidavit of Brenda McDermott sworn to April 12, 2019 with Exhibits A and B; 5. Attorney Affirmation of Douglas R. Kemp, A.A.G. dated May 6, 2019.