Claimant motorist injured in accident on Route 6 sought leave to file a late claim. The court denied the motion based on claimant's failure to show the more than two year delay was excusable, that defendant had notice and would not be substantially prejudiced, and that the proposed claim had the appearance of merit.
|Claimant short name:||ESTRADA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the only proper defendant.|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||LAW OFFICE OF MICHAEL H. JOSEPH, P.L.L.C.
By: Brain D. Primes, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL
By: Dian Kerr McCullough, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 19, 2018|
|See also (multicaptioned case)|
Claimant moves to file a late claim pursuant to Court of Claims Act § 10(6). The proposed claim seeks damages for personal injuries and property damage claimant sustained on November 14, 2015, when a vehicle speeding on New York State Route 6 ("Route 6") crashed into the vehicle she was driving as she exited the Route 6 Plaza in the Town of Carmel. One of the passengers in claimant's vehicle died and another was injured as a result of the accident. Claimant alleges the State and the New York State Department of Transportation ("NYSDOT") were negligent in roadway design and maintenance in permitting overflow parking onto the south shoulder of Route 6, and the obstruction of sight lines by the parked cars proximately caused the accident. Defendant opposes.
Pursuant to Court of Claims Act § 10(3), claimant was required to file and serve a claim, or serve a notice of intention, within 90 days after the claim accrued on November 14, 2015, or by February 12, 2016. Claimant did neither. Even if she had timely served a notice of intention, extending the time for filing and serving the claim to within two years after the accrual date, the two-year extension had also expired by the time she submitted her late claim motion on January 5, 2018.
Court of Claims Act § 10(6) provides the court with the discretion to allow a late claim to be filed, upon consideration of all relevant factors, including whether claimant's delay was excusable, whether defendant had timely notice of and the opportunity to investigate the pertinent allegations, whether defendant would suffer substantial prejudice should the motion be granted, whether the proposed claim has the appearance of merit and whether claimant has an alternate remedy (see Morris v Doe, 104 AD3d 921, 921 [2d Dept 2013]; see also Qing Liu v City Univ. of N.Y., 262 AD2d 473, 474 [2d Dept 1999]). "No one factor is deemed controlling, nor is the presence or absence of any one factor determinative" (Qing Liu at 474; see Morris at 921). For the purpose of deciding this motion, claimant's unrefuted factual allegations are accepted as true (see Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334 [3d Dept], affd 47 NY2d 976 ; see also Lee v State of New York, 51 Misc 3d 201, 203 [Ct Cl 2015] [limiting rule to affidavits by those with knowledge of the attested-to facts]).
To support her motion, claimant has filed: an affirmation by her attorney Brian D. Primes ("Primes Aff."); her own affidavit ("Estrada Aff."); a copy of the proposed verified claim (Exh. 1); and Exhibits 2-11. In opposition, defendant has filed: an affirmation by Assistant Attorney General Dian Kerr McCullough ("McCullough Aff."); and Exhibits A-C. The proposed claim is within the applicable three-year statute of limitations for negligence actions (see (CPLR 214). The late claim motion was filed on January 5, 2018, approximately two years and two months after the accident on November 14, 2015.
The moving papers provide that Route 6 is a two-way single-lane roadway bordered by paved shoulders. On November 14, 2015, at approximately 9:38 p.m., while exiting the parking lot of the Chophouse Grille, located at 957 Route 6 in Carmel, New York, the car claimant was driving was struck by a vehicle driven by Richard O'Keefe eastbound on Route 6. The impact caused claimant's car to flip over and hit a third car. O'Keefe was traveling at 58 mph, 18 mph over the 40 mph speed limit on Route 6. There were no traffic control devices for exiting vehicles at the time of the collision. (Exh. 3, accident reconstruction report ["the Reconstruction Report"]).(2) Claimant sustained rib fractures and a traumatic brain injury. Her husband, a passenger in the car, was injured. Another passenger, the owner of the car, was killed.(3) Claimant was hospitalized for approximately 11 days, and for months thereafter had to see specialists and undergo tests, treatment and therapy. She continues to suffer from some cognitive deficits, pain and PTSD.
Carmel police responded to the scene, then called New York State Troopers to take over the investigation because Richard O'Keefe is a retired Carmel police officer who was later elected to the Carmel Town Board. O'Keefe was visibly intoxicated at the scene of the accident. He refused to consent to a blood alcohol test. After judicial intervention, a blood sample was secured at approximately 6:00 the following morning. The Police Lab extrapolated O'Keefe's blood-alcohol content to be 0.247% at the time of the collision (Exh. 3, pg. 11). After an extensive investigation, on February 22, 2017, O'Keefe pleaded guilty to criminally negligent homicide (NYS Penal Law § 125.10) (Primes Aff., ¶ 24).
The State Police Accident Report (MV-104A) attached to the Reconstruction Report does not mention parked cars or possible sight obstruction, only that O'Keefe's car hit claimant's "due to [claimant] failing to yield right of way." The Reconstruction Report echoes this conclusion: "The primary cause of this collision was the operator of Vehicle #1, Anna C. Estrada, failing to yield the right-of-way to Vehicle #2" (Exh. 3, pg. 13). That report refers to the additional contributing factor being O'Keefe's intoxication and speeding, and the "possible additional contributing factor" that vehicles parked along the Route 6 shoulder may have obstructed the crash vehicles' view. Sgt. McSorley, the author of the Reconstruction Report, notes a comment by another Sergeant that at the time of the collision, "there were vehicles parked along the eastbound State Route 6 shoulder, south of the entrance to the Route 6 Plaza, which may have obstructed the view of vehicles exiting the parking lot or approaching the intersection from the south." Sgt. McSorley also notes that when he arrived at the scene of the accident at approximately 10:45 p.m., any parked vehicles had been removed and no photos of their locations had been secured (Exh. 3, pgs. 1, 3).
At the request of claimant's counsel, engineer Russell J. Kolmus III, P.E., prepared a preliminary report on the accident reconstruction and sight distances (Exh. 11). Mr. Kolmus visited the site of the accident on January 21, 2017, and performed sight line testing. He also reviewed the "police report" in his preliminary report, Mr. Kolmus notes that evaluation of sight distance is "not a police function," but rather a function of NYSDOT that "should have been evaluated by their engineers" (Exh. 11, pg. 9). He provides the following expert opinions: "When vehicles are parked on the south shoulder of Route 6 in the vicinity of the Route 6 Plaza, a maximum sight distance of one-quarter that is required by the New York State Highway Design Manual is available to motorists entering the Route 6"; the lack of sight distance is a hazard to vehicles on Route 6 and exiting the Plaza onto Route 6; and the lack of sight distance and the State's failure to restrict parking were "substantial contributing factor[s] of this incident" (Exh. 11, pg. 12).
According to claimant's attorney, claimant has filed a separate action against O'Keefe and the bars that served him, but claimant's potential recovery will be insufficient to satisfy her financial costs and those of the additional plaintiffs suing them - claimant's husband and the family of the deceased passenger.
Turning to the factor of delay, the excuse for failing to timely file must relate to the initial 90-day period (see Rella v State of New York, 89 AD2d 870 [2d Dept 1982]; see also Bloom v State of New York, 5 AD2d 930 [3d Dept 1958]). Claimant argues that the initial delay of 90 days was reasonable because she was incapacitated from her injuries, and she could not "properly present the action" until she received the "necessary information" from the State, which did not provide the information because of the prosecution of O'Keefe (Estrada Aff., ¶¶ 18-19).
Claimant's attorney cites in his affirmation several additional reasons for the delay: before retaining her current counsel on July 1, 2016, claimant and her husband were represented by two other law firms and consulted with another that declined to represent them; New York State Troopers and the District Attorney withheld materials while they investigated O'Keefe; claimant did not receive the investigative materials until September 2017, after requesting them through FOIL in March 2017; and claimant's roadway engineer, Russ Kolmus, was not able to complete his investigation until receipt of the State investigative material. The court accepts these assertions by claimant's counsel as true because counsel attests they are based on his personal knowledge (Primes Aff., ¶ 1) (see Lee v State of New York, 51 Misc 3d 201, 205 [Ct Cl 2015]).
The proposed claim alleges that claimant was severely injured by the accident, sustaining a traumatic brain injury and broken ribs. Her affidavit and the medical records attached as exhibits establish that she was hospitalized for approximately the first 11 days, then focused on doctor's visits, tests and treatment, and she was suffering from "concussive like symptoms" that could "last sometimes up to three months" (Exh. 8 [12/9/15 report by Kaushik Das, M.D.]). Claimant did manage to return to her work as an accountant on a limited basis within six weeks after the accident, but testing and evaluation demonstrated that she was "experiencing deficits in several areas of cognitive capacity," such as "working memory," "acquisition and consolidation of information," and "multitasking" (Exh. 10 [12/22/15 clinic report]). Physical incapacitation has been held to be a reasonable excuse for delay (see Wolf v State of New York, 140 AD2d 692 [2d Dept 1988] [claimant's physical incapacitation after accident was reasonable excuse for delay]).
However, the court does not accept that claimant's incapacity caused her to delay serving a notice of intention or a claim before mid-February 2016 when, by April, she had already been denied representation by one law firm and had been represented by another, then between April and July 1 she managed to obtain and lose legal representation by another firm then finally went to current counsel (Primes Aff., ¶ 69). Even if the initial 90-day delay was excusable, claimant has failed to provide a reasonable excuse for, or even credibly explain, her subsequent delay of nearly two years to file the instant motion. Defendant has cleared up the mystery by submitting in opposition a July 10, 2017 decision by Putnam County Supreme Court Justice Robert DiBella (McCullough Aff., Exhs. A, C), denying claimant's motion for leave to file a late notice of claim to make a similar claim against the Town of Carmel.(4) Claimant's current attorney attests that he is of counsel to one of the two noticed law firms listed on the decision (Primes Aff., ¶ 1).The allegations against the town, which Justice DiBella summarizes, mirror the proposed claim against New York State.
Neither claimant nor her attorney disclosed to this court the prior, ill-fated attempt to sue the Town for the same claims now directed at the State and NYSDOT. Suing the wrong defendant is not a reasonable excuse for claimant's delay (see Almeida v State of New York, 70 AD2d 712 [3d Dept 1979] [law office failure]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854  [mistake as to proper entity to sue]). Claimant then waited to file the instant motion until six months after Justice DiBella denied her leave to file a late notice of claim against the Town. The court is not prepared to find sua sponte that claimant's omission rises to the level of a fraud on the court, but does find that claimant failed to provide a reasonable excuse for her significant delay. This factor weighs against claimant, and alone could warrant denial of the motion (see Innis v State of New York, 92 AD2d 606, 606 [2d Dept 1983]; affd by 60 NY2d 9564  [reversing grant of late claim motion where no reasonable excuse of a two and a half year delay]; see also Ruiz v State of New York, 220 AD2d 734 [2d Dept 1995], app denied 88 NY2d 816  [denial of late claim motion affirmed where claimant knew of service deficiency for over two years and provided no excuse for delay]). Denial of the motion is also required based on consideration of the remaining factors.
The next three factors to be addressed - whether defendant had notice of the essential facts constituting the claim, whether defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to defendant - are interrelated and will be considered together.
Claimant has not shown that the State or NYSDOT had actual knowledge of the essential facts constituting the claim within 90 days after the accident or a reasonable time thereafter. The fact that the State Police conducted an investigation of the accident and of O'Keefe does not show the State had notice of the essential facts constituting a claim for negligence in the design and maintenance of Route 6. Furthermore, the State Police Accident Investigation Report is not notice to NYSDOT of negligent highway design (see Quilliam v State of New York, 282 AD2d 590, 591 [2d Dept 2001] [incident report of slip and fall to SUNY campus police did not provide the State with notice of essential facts constituting the claim that a defective condition caused the incident]; see also Russ v New York City Hous. Auth., 198 AD2d 361, 362 [2d Dept 1983] [knowledge of an accident or occurrence by a municipality's police or fire department cannot be imputed to NYCHA]).
It is the claimant's burden to make an initial showing that the State will not be substantially prejudiced. "Such a showing need not be extensive, but the claimant must present some evidence or plausible argument that supports a finding of no substantial prejudice" (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466-467  [finding lower court abused discretion placing burden, to show lack of substantial prejudice, solely on petitioner in motion for leave to serve late notice of claim under General Municipal Law § 50-e(5)]). If successful, the State is required to rebut that showing with "particularized evidence" (see id.; see also Matter of Ruiz v City of New York, 154 AD3d 945, 947 [2d Dept 2017] [applying shifting burden standard]).
Claimant argues that the State had notice of a dangerous design condition because from 2012 through January 5, 2017, there had been numerous accidents at or near Route 6 and East Lake Boulevard. In support, claimant submits a FOIL analysis of car crash data from the Town of Carmel Police (Exh. 6). The printout submitted by claimant does not provide any detail regarding the listed accidents other than dates, general location and reference number. In any event, claimant confuses notice of a dangerous condition with notice of the essential facts constituting a claim. Notice to the State Police of an accident and a subsequent investigation by the State Police of that accident is not notice of a design defect claim against the State. Defendant would be substantially prejudiced by the delay. The Reconstruction Report claimant submitted notes there are no photos of parked cars on Route 6 right after the accident. More than two years after the fact, with only faded memories to go by, it is not possible for the State to conduct an adequate investigation. Claimant has not met her threshold burden to show that the delay will not substantially prejudice defendant.
It is not necessary for the court to engage in a lengthy discussion on whether claimant has established that her claim has the appearance of merit. It does not. To prove a prima facie case claimant must show that the defendant's negligence was a substantial cause of the events that caused the injury (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 ). Proof of a general condition that might or might not have existed when the accident occurred, which is what the unsworn preliminary report of claimant's expert engineer provides, is woefully inadequate. Further, the State's design decisions, and in particular the decision whether to install a traffic control device, are generally discretionary determinations for which the State is immune from liability (see Iagrossi v Gerber, 205 AD2d 586, 587 [2d Dept 1994], app denied 85 NY2d 805 ; see also Cimino v City of New York, 54 AD2d 843 [1st Dept 1976], affd 43 NY2d 966 ). Claimant was required, but failed, to provide facts showing that a design plan by the State evolved without adequate study, was plainly inadequate or there was no reasonable basis for the plan (see Affleck v Buckley, 96 NY2d 553 ).
Claimant's additional argument for liability, predicated on the State's failure to enforce parking regulations, is equally unfounded. The State's enforcement of statutes and regulations is also a governmental function. No liability may be imposed on the State for its failure to enforce parking regulations absent proof of a special relationship creating a duty to enforce the regulations for claimant's protection, as opposed to protection of the public in general (see Kenavan v New York, 70 NY2d 558, 564 ; Tobar v New York,146 AD2d 694, 695 [2d Dept 1989]). Claimant has not alleged or shown the requisite special relationship.
As a result of the analysis of the proposed claim, the court does not find "reasonable 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]; see Sands v State of New York, 49 AD3d 444 [1st Dept 2008]; see also Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
Accordingly, claimant's motion for leave to file a late claim is denied.
April 19, 2018
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Notice of Motion, Affirmation in Support, Affidavit in Support and Exhibits
Affirmation in Opposition and Exhibits
2. The Reconstruction Report was prepared by State Trooper Sgt. Peter W. McSorley, Jr. and submitted October 6, 2016.
3. Claimant was the designated driver that night.
4. He concludes that claimant failed to establish a reasonable excuse for the delay primarily because she did not support her assertion of physical incapacity with medical evidence.