Late claim application granted.
|Claimant(s):||WILLIAM C. SIVERS and RONICA L. SIVERS|
|Claimant short name:||SIVERS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||WEGERSKI LAW FIRM
By: John P. Wegerski, III, Esquire
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Bonnie Gail Levy, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 14, 2018|
|See also (multicaptioned case)|
Movants brings a timely motion seeking permission to file a late claim pursuant to Court
of Claims Act section 10 (6). Defendant opposes the motion.
The proposed claim alleges that on May 4, 2016 at approximately 3:53 p.m., Movant, William C. Sivers,(1) was operating his motorcycle heading southbound on Route 481, a State- owned highway in the Town of Volney, Oswego County. At the same time, Alan J. Hibbert was driving his pickup truck eastbound on County Route 45. Mr. Hibbert stopped his truck at the intersection of Routes 481 and 45, and then proceeded to cross Route 481 into the path of Movant. The vehicles collided and Movant was severely injured, suffering multiple fractures.
The claim further asserts that Movant's injuries and damages were the result of Defendant and Mr. Hibbert's negligence. The State's negligence allegedly consists of negligent design and construction of the intersection, improper placement of signs, and other fixtures that obstruct the view of eastbound motorists, failure to place proper signs, and placement of improper signs near the intersection, and creating a dangerous condition in its construction and maintenance of the intersection. Further, the State failed to provide proper sight distance and failed to timely remedy the dangerous condition that Defendant knew or should have known existed with sufficient time for remediation.
Court of Claims Act section 10 (6) allows a claimant who has failed to timely serve a notice of intention or file and serve a claim within the time frame set forth in Court of Claims Act section 10 to make an application to the Court to file a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10 ). A timely application may be granted, in the discretion of the Court, after considering the six factors listed in Court of Claims Act section 10 (6), and any other relevant factors. It is a balancing of all of these factors, rather than the presence or absence of any one, that warrants granting the application (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). Movants' application is timely (Court of Claims Act § 10 (6); CPLR 214 [5 ]).
The first factor is whether there is a reasonable excuse for the delay. Movant retained counsel 14 days after the accident. Counsel requested documents from the New York State Department of Transportation (DOT) pursuant to the Freedom of Information Act (FOIL) on June 23, 2016, in an effort to determine the proximate cause of the accident. Movant had already learned that Mr. Hibbert's insurance had liability limits of $100,000/$300,000, and that Movants were not eligible for benefits under their Supplemental Underinsured Motorist policies. Movant received an email response and some records from DOT on July 21, 2016. It wasn't until September 2016 that Movant received all of the FOIL documents. On August 2, 2016, Movant's counsel prepared a notice of intention and mailed it by certified mail, return receipt requested to the Office of the Attorney General both in Syracuse and Albany, New York. They were received on August 3, and 4, 2016, respectively; one and two days beyond the 90-day time frame to commence an action in the Court of Claims (Court of Claims Act § 3-a). As Defendant notes, the failure to timely serve a notice of intention is jurisdictional and can only be cured by a successful motion to file a late claim. Although Movant did not have all of the FOIL information requested, there was sufficient information to draft a notice of intention with no explanation why it could not be served a few days earlier (Modern Transfer Co., v State of New York, 37 AD2d 756 [4th Dept 1971]). Although the Court finds this factor weighs against granting Movant's application, it is but one factor for consideration.
Turning now to the factors of the State's notice of the facts underlying the proposed claim, whether it had an opportunity to investigate the facts, and whether it will suffer prejudice if the application is granted. The very brief delay in serving the notice of intention provided the State with notice of the underlying facts of an alleged enduring design defect that allegedly was a cause of Movant's accident. The State also has the necessary information to investigate and prepare a defense.
The "Accident Location Information System" (ALIS) provides specific information for the collisions that occurred at the same intersection - Routes 481 and 45 - from January 1, 2001 through September 2, 2016. The State also has the accident report for this accident, although, Defendant correctly argues that the filing of the police report was not notice to the State of this potential lawsuit (Casey v State of New York, 161 AD3d 720 [2d Dept 2018]). The State was given notice of the underlying facts for the proposed claim 91 days after the accident, and it had studied this location and had proposed reconstruction. Based upon all of the foregoing, these factors weigh in favor of granting the motion.
The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
Movant has submitted documents from DOT from 2006 through 2008 which indicate the State had notice of the number of right angle collisions at this intersection. Movant has also attached an Affidavit of Merit from John A. Serth, a Professional Engineer, licensed in New York State, who reviewed the documents and personally inspected the intersection. In his opinion, the intersection was not properly designed and constructed, and is a dangerous condition. He opined that the State was further negligent in delaying a proposed reconstruction project, and that the design defects at the intersection were a cause of Movant's collision. Movant has established the proposed claim is potentially meritorious. This factor weighs in favor of Movant's application.
The final factor to be considered is whether Movant has any other available remedy. Movant has an action against Mr. Hibbert, but contends the potential recovery will not fully compensate him due to the severity of his injuries. This factor weighs against Movant.
Based upon the foregoing, the Court GRANTS Movants' motion and directs that they properly verify, file, and serve their proposed claim in accordance with Court of Claims Act section 11 and all applicable Court rules within 30 days of the date this Decision and Order is filed with the Clerk of the Court. Movants must also pay the filing fee or submit the appropriate application in accordance with Court of Claims Act section 11-a.
August 14, 2018
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affirmation of John P. Wegerski, III, Esquire, in support, with exhibits attached thereto.
3) Affidavit of Movant, William C. Sivers, sworn to May 3, 2018, in support, with exhibits attached thereto.
4) Affidavit of Movant, Ronica L. Sivers, sworn to May 3, 2018, in support.
5) Affidavit of Merit of John A. Serth, Jr., P.E., sworn to May 4, 2018, in support, with exhibits attached thereto.
6) Memorandum of Law in support.
7) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in opposition.
1. All references to Movant refer to William C. Sivers as Ronica M. Sivers' claim is derivative.