Opinion
# 2016-032-160 Claim No. 128315 Motion No. M-89104 Cross-Motion No. CM-89322
12-19-2016
CARMEN TORRES v. THE STATE OF NEW YORK
David J. Hernandez & Associates By: David A. Bonilla, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Suzette Corinne Merrit, Assistant Attorney General, Of Counsel
Synopsis
Defendant's motion to dismiss is granted, as claimant did not file the claim within 90 days of accrual. Claimant's cross motion for late claim relief is granted.
Case information
| UID: | 2016-032-160 |
| Claimant(s): | CARMEN TORRES |
| Claimant short name: | TORRES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128315 |
| Motion number(s): | M-89104 |
| Cross-motion number(s): | CM-89322 |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | David J. Hernandez & Associates By: David A. Bonilla, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Suzette Corinne Merrit, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | December 19, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant commenced the instant action seeking damages for personal injuries that she sustained in a motor vehicle accident on a State highway on December 5, 2015. In lieu of an answer, defendant moves to dismiss the claim on the ground that it was not filed and served upon the Attorney General within 90 days of accrual. Claimant opposes the motion and cross-moves for late claim relief under Court of Claims Act § 10 (6), which motion defendant opposes.
As relevant here, "[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within [90] days after the accrual of such claim" (Court of Claims Act § 10 [3]). "Failure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Best v State of New York, 42 AD3d 699, 700 [3d Dept 2007]). Given that it is undisputed that claimant's accident occurred on December 5, 2015, and she did not file and serve her claim until August 5, 2016 and August 6, 2016, respectively, the Court lacks subject matter jurisdiction over the action and defendant's motion to dismiss the claim must be granted (see Vargas v State of New York, 62 AD3d 1170, 1171 [3d Dept 2009]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
With respect to claimant's cross motion seeking leave to file and serve a late claim, because said motion was brought within the applicable three-year statute of limitations under CPLR 214 (5), such relief is left to the discretion of the Court (see Court of Claims Act § 10 [6]; Tartaglione v State of New York, UID No. 2016-016-002 [Ct Cl, Marin, J., Jan. 5, 2016]; compare Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984]). Accordingly, the Court must consider whether: (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the State was substantially prejudiced by the delay; (5) claimant has any other available remedy; and (6) the claim appears to be meritorious (see Court of Claims Act § 10 [6]). While the presence or absence of any one of these factors is not dispositive (see Williams v State of New York, 133 AD3d 1357 [4th Dept 2015]), the last factor is generally the most decisive inasmuch as "'it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion'" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
As to the first factor, the Court finds that claimant has "demonstrated that her failure to timely serve a . . . claim within the 90-day statutory period was attributable to her incapacitation" following the accident (Fenton v County of Duchess, 148 AD2d 573, 574 [2d Dept 1989]; see Matter of Staley v Piper, 285 AD2d 601, 602 [2d Dept 2001]; Wolf v State of New York, 140 AD2d 692, 693 [2d Dept 1988]). According to claimant's medical records, she was hospitalized from December 5, 2015 through January 4, 2016, during which time she was treated for significant injuries, including but not limited to severe head trauma - which contributed to a coma - acute respiratory failure, and multiple broken bones (Exhibit 4). In her affidavit, claimant avers that upon leaving the hospital, she was transferred to a rehabilitation center, where she remained until February 13, 2016, at which time she was released into the care of a home health aide and physical therapist (Exhibit 3, ¶ 9). Claimant further states that "prior to getting a lawyer, [she] was only concerned with healing and learning to cope with [her] injuries" (Exhibit 3, ¶ 9). Claimant's attorney avers that, after she retained his services on April 21, 2016, the additional delay in serving the claim "was caused by the need to investigate the matter sufficiently to identify and interview potential witnesses and determine the proper party defendants" (Morano v County of Dutchess, 160 AD2d 690, 692 [2d Dept 1990]; see Matter of Pazienza v Westchester County Health Care Corp., 142 AD3d 669, 670 [2d Dept 2016]). Upon the evidence submitted, the Court finds that claimant has demonstrated a reasonable excuse for her delay in serving a claim in this matter (see Wolf v State of New York, 140 AD2d at 693; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]). In any event, "[e]ven if there exist some unexplained gaps during the . . . period after [her] release from the hospital that could have been better explained, the absence of a reasonable excuse is not necessarily fatal when weighed against other relevant factors" (Matter of Staley v Piper, 285 AD2d at 602).
The three factors of defendant's notice of and opportunity to investigate the essential facts constituting the claim and the lack of substantial prejudice to be incurred by granting late claim relief are frequently analyzed together since they involve similar considerations. Notably, defendant does not argue against nor offer any evidence as to these factors. In the absence of such evidence, and considering that claimant's allegations concern the State's operation, maintenance, and inspection of its own roadway, the Court finds that these three factors weigh in favor of granting the motion (see Epstein v State of New York, 88 AD2d 967, 967-968 [2d Dept 1982]; see also Calzada v State of New York, 121 AD2d 988, 989-990 [1st Dept 1986]).
With respect to the factor of alternative remedies, the Court agrees with defendant that claimant has an alternative remedy against the driver of the vehicle that struck her vehicle. The Court also agrees, however, with claimant's explanation that the adequacy of said remedy may be less than sufficient based upon the limits of the insurance policy of the driver, which is alleged to be $100,000/$300,000 (Exhibit 11). In light of the severity of the injuries sustained by claimant, her prolonged hospitalization, and the continued need for physical therapy, the Court finds that this alternative remedy may be just a partial remedy. Accordingly, the Court finds that this factor weighs in neither party's favor (see Epstein v State of New York, 88 AD2d at 967; Blaze v State of New York, UID No. 2010-032-011 [Ct Cl, Hard, J., Mar. 24, 2010]; Rosenhack v State of New York, 112 Misc 2d at 969).
Turning then to the final factor, in order to establish a meritorious cause of action, claimant must establish that her claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 [6]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). While there is a heavier burden on a claimant who is seeking to file late than upon a claimant whose claim is timely (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11), in order to meet that burden, a proposed claim need only have "the appearance of merit" (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]). "While absolute exactness is not necessary, a claimant must provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of [its] liability" (Sommer v State of New York, 131 AD3d 757, 757-758 [3d Dept 2015] [internal quotation marks and citations omitted]). In determining whether to grant late claim relief, a court "is not confined to the text of the proposed claim itself," but may consider affidavits, exhibits, and other evidence to assess whether claimant has a meritorious cause of action (Mamedova v City University of New York,13 Misc 3d 1211 [A], *5 [Ct Cl 2006]; see Wong v State of New York, UID No. 2012-030-587 [Ct Cl, Scuccimarra, J., Dec. 5, 2012]).
Here, the Court finds that claimant has met her minimal burden of establishing the appearance of merit with respect to her claims of negligence, gross negligence, trap and nuisance, and negligent design, construction, and maintenance of the Jackie Robinson Parkway, as alleged against the State and the Department of Transportation (DOT). It is well-settled that the State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 286 [1986]; Campbell v City of Glen Cove, 19 AD3d 632, 634 [2d Dept 2005], lv denied 8 NY3d 814 [2007]). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). As a general matter, "late claim applications alleging negligence in highway design and construction must be supported by the sworn opinion of someone with related expertise" (Nyberg v State of New York, 154 Misc 2d 199, 203 [Ct Cl 1992]; see Klingler v State of New York, 213 AD2d 378, 379 [2d Dept 1995]). In some cases, however, reports and findings of investigative bodies setting forth accepted highway design standards, departures from such standards, and possible causes of the accident at issue have been found to satisfy that requirement, especially when coupled with the affirmation of a layperson (see e.g. Wong v State of New York, UID No. 2012-030-587 [Ct Cl, Scuccimarra, J., Dec. 5, 2012]; Mabon v State of New York, UID No. 2007-018-589 [Ct Cl, Fitzpatrick, J., Dec. 3, 2007]; see also Matter of Morales v State of New York, 292 AD2d 455, 456 [2d Dept 2002]).
Together with her own affidavit and her attorney's affirmation, claimant in this case has submitted relevant reports of investigative bodies, which include findings from the DOT and other State agencies regarding the State's maintenance of the Jackie Robinson Parkway (see Matter of Morales v State of New York, 292 AD2d at 456; Wong v State of New York, UID No. 2012-030-587 [Ct Cl, Scuccimarra, J., Dec. 5, 2012]). Most notably, claimant's attorney cites findings from the DOT indicating that, at the time of claimant's accident, the Jackie Robinson Parkway received a ranking of 5.8 on a 10-point scale used by the DOT to assess pavement conditions of New York City roadways, and that roadways should be repaved when they reach a 6 on said scale (Exhibit 10, p. 15-16). According to the other documents submitted by claimant, including the police report from the accident, claimant's affidavit, and the claim itself, the accident arose when claimant's vehicle was caused to veer off the highway, due in part to the substandard conditions of the Jackie Robinson Parkway (Exhibits 1, 3, 8). The Court notes that, "[i]n its opposition to this application, no affidavit has been submitted by the State from anyone with personal knowledge" of the accident or the roadway in question (Calzada v State of New York, 121 AD2d at 989). Overall, the Court finds that claimant's submissions satisfy the minimal burden of showing that her claim is not "patently groundless, frivolous or legally defective" (Rizzo v State of New York, 2 Misc 3d at 834; see Matter of Morales v State of New York, 292 AD2d at 456; Wong v State of New York, UID No. 2012-030-587 [Ct Cl, Scuccimarra, J., Dec. 5, 2012]; Mabon v State of New York, UID No. 2007-018-589 [Ct Cl, Fitzpatrick, J., Dec. 3, 2007]).
Accordingly, having weighed and considered the factors set forth under Court of Claims Act §10 (6), the Court exercises its discretion and hereby allows claimant to file and serve a late claim against defendant.
Based upon the foregoing, it is hereby
ORDERED, that defendant's motion to dismiss (M-89104) is granted and the claim (No. 128315) is dismissed; and it is further
ORDERED, that claimant's cross motion (CM-89322) is granted and claimant is directed to file and serve a verified claim in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof, within sixty (60) days of the filing of this Decision and Order.
December 19, 2016
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion dated August 22, 2016, and Affirmation in Support of Motion to Dismiss, affirmed by Suzette Corinne Merritt, AAG, on August 22, 2016, with exhibit. 2. Notice of Cross Motion, dated October 6, 2016, and Affirmation in Opposition to the State's Motion to Dismiss and in Support of Claimant's Cross Motion, affirmed by David A. Bonilla, Esq., on October 6, 2016, with exhibits. 3. Affirmation in Opposition to Claimant's Cross Motion and in Further Support of the State's Motion, affirmed by Suzette Corinne Merritt, AAG. 4. Reply Affirmation in Further Support of Claimant's Cross Motion, affirmed by David A. Bonilla, Esq., on October 15, 2016.