Claimant's motion for permission to file and served a late claim granted.
|Claimant short name:||SMITH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||GREENBERG & GREENBERG
By: Mark D. Greenberg, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Belinda A. Wagner, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 14, 2018|
|See also (multicaptioned case)|
Claimant moves pursuant to Court of Claims Act § 10 (6) for permission to file and serve a late claim. The proposed claim alleges that claimant sustained injuries on January 14, 2015, when a vehicle driven by New York State Trooper David Walsh struck a vehicle in which he was a passenger.(1) Claimant served on defendant a notice of intention to file a claim on March 30, 2015, but did not serve and file a timely claim within two years of the accrual of the claim as required by Court of Claims Act § 10 (3-a). Defendant opposes the motion.
In deciding a late claim motion, Court of Claims Act § 10 (6) requires the Court to consider, among other 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 presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court.
Although claimant's moving papers offer no excuse for his failure to timely file and serve the claim, he asserts in reply to defendant's opposition papers that at the time that the notice of intention was served, claimant's counsel "did not have information regarding Trooper Walsh's actions" and that "it initially appeared that [claimant's] injuries were not overly severe," so the time to file and serve the claim was allowed to lapse, but after meeting with claimant's physician, claimant's counsel discovered that claimant's injuries "were more significant than originally thought" (Greenberg Reply Affirmation, ¶¶ 9-10). The lack of information about Trooper Walsh's actions - which were detailed in a deposition taken in March 2016 and which were the subject of a motion in the claim being prosecuted by Becker's estate that was decided in June 2017 - provides no excuse to the timely filing and service of the claim. Further, claimant's excuse that the limited nature of his injuries affected the decision to go forward with litigation is unavailing, inasmuch as he served a Notice of Intention, which extended the time to serve and file a claim by 21 months, and it is unexplained how or why he was unable to appreciate the severity of his injuries within that period of time, particularly since the Notice of Intention asserts that he sustained serious injury within the meaning of Insurance Law §5102 (d). Thus, this factor weighs against granting claimant's application.
Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and 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 are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimant argues that the service of the Notice of Intention put defendant on notice of the essential facts of the claim and that defendant had an opportunity to investigate, and that the granting of the claim will not result in substantial prejudice to defendant. Defendant does not dispute any of these factors and accordingly, these three factors weigh in favor of the application.
The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he will prevail on his claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., supra at 11).
The proposed claim alleges that the injury producing accident occurred because defendant and Trooper Walsh were "negligent, careless and reckless in the ownership, management, maintenance, supervision and control" of Trooper Walsh's vehicle, that defendant "failed to provide proper training to [Trooper Walsh] in connection with property safety procedures related to pursuing vehicles at a high rate of speed," and that Trooper Walsh "violated proper procedure in connection with pursuing vehicles at a high rate of speed, including but not limited to failing to turn on emergency lights and failing to ensure that there was a safe route of travel at the intersection where the accident occurred" (Greenberg Affirmation, Exhibit C [Proposed Claim, ¶¶ 21-23] [emphasis added]). The proposed claim proposes to append a copy of the Police Accident Report for the accident, which is appended to the motion papers as Exhibit A (see id., at ¶ 18; see also id., Exhibit A). The accident report recorded that "[t]he accident occurred in a police vehicle owned/operated by the New York State Police while responding to an emergency" and that Trooper Walsh's vehicle "was traveling westbound State Route 23 in an effort to stop an uninvolved speeding vehicle, when [Becker's vehicle] being operated southbound on Cairo Jct Rd enters State Route 23 directly into the path of [Becker's vehicle]," that Trooper Walsh's vehicle struck Becker's vehicle "on the driver's side causing extensive damage to both vehicles" and that Becker was pronounced dead at the hospital (id., Exhibit A). Attached to the accident report is a diagram of the accident which depicts that Trooper Walsh's vehicle was traveling in a westbound direction and Becker's vehicle was traveling in a southbound direction at the time of impact.
In his moving papers, claimant offers no argument regarding the appearance of merit of the proposed claim. In opposition, defendant argues that the motion lacks proof in evidentiary form to demonstrate that the claim has the appearance of merit. Specifically, defendant argues that although claimant submitted the police accident report, he omitted the cover sheet (Wagner Affirmation, Exhibit A, Sub-Exhibit 1), which provides the key to the codes on the form, and that the accident report noted as apparent contributing factors Becker's failure to yield the right of way and glare. Defendant argues that although the proposed claim alleges that Trooper Walsh violated proper procedures in pursuing vehicles at a high rate of speed, there is nothing in the proposed claim or accident report to support the allegation that he was pursuing a vehicle or was traveling at a high rate of speed. Defendant also argues that it is unclear from the proposed claim whether claimant is alleging only negligence, which is insufficient to support a tort claim involving police vehicles involved in emergency operations pursuant to Vehicle and Traffic Law § 1104, that Trooper Walsh's actions were entitled to a qualified privilege and it must be proven that Trooper Walsh acted with reckless disregard, and that there is no evidence before the Court indicating that he acted in reckless disregard. In reply to defendant's opposition papers, claimant attaches two documents, Trooper Walsh's deposition in the claim of Becker v State of New York (Claim No. 125938), and a Collision Reconstruction Findings Report authored by Investigator Daniel Smith about the accident. Claimant agues that Trooper Walsh's deposition testimony demonstrates that he was traveling at a high rate of speed (approximately 100 miles per hour [mph]) without lights and sirens in his pursuit of another vehicle just prior to the collision, that he never saw the vehicle he was pursuing after he made a U-turn to initiate pursuit, that he admitted that the vehicle may not have been on Route 23 while he was traveling at 100 mph, and that Becker's vehicle had reached the passing lane at the time of impact. Further, claimant argues that Collision Reconstruction Findings Report confirms that Trooper Walsh was traveling 98 mph approximately 250 feet from the intersection and that Trooper Walsh's vehicle collided with the driver door of Becker's vehicle. Thus, claimant argues that there is a question of fact as to whether Trooper Walsh violated VTL § 1104.
The meaning of "appearance of merit" within Court of Claims Act § 10 (6) bears repeating: the claim may not be patently groundless, frivolous or legally defective, and the evidence submitted on the motion must provide reasonable cause to believe that a valid cause of action exists - claimant need not demonstrate a prima facie case nor meet a summary judgment standard. Here, the claim clearly alleges that Trooper Walsh's actions were reckless, and that allegation, particularly as supported by the accident report, Trooper Walsh's deposition testimony and the collision reconstruction report, establishes reasonable cause to believe that a valid cause of action against the State exists. Accordingly, this crucial factor weighs in favor of the application.
Claimant does not assert that he is without available remedies, and defendant asserts that claimant could have pursued an action against Becker's estate, to which claimant offers no reply.
In sum, four of the six statutory factors, including the crucial factor of the appearance of merit to the proposed claim, weigh in favor of granting the late claim motion, and upon consideration of all of these factors, it is concluded that claimant should be permitted to file and serve a late claim. Accordingly, it is
ORDERED, that Motion No. M-91297 is GRANTED, and claimant is granted permission to file and serve a late claim, and it is further
ORDERED, that claimant is directed to file and serve a claim naming the State of New York as the only proper defendant in accordance with the requirements of sections 11 (a) (i) and 11-a of the Court of Claims Act, not later than thirty (30) days after the date of filing of this Decision and Order.
March 14, 2018
Saratoga Srpings, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion, dated October 25, 2017;
(2) Affirmation of Mark D. Greenberg, Esq., dated October 25, 2017, with Exhibits A-C;
(3) Affirmation of Belinda A. Wagner, AAG, dated November 29, 2017, with Exhibit A, Sub-
(4) Reply Affirmation of Mark D. Greenberg, Esq., dated December 5, 2017, with Exhibits A-B.
1. The driver of claimant's vehicle, Louis Becker, died from his injuries and his estate brought a claim against the State in the Court of Claims (see UID No. 2017-038-548 [Ct Cl, DeBow, J., June 30, 2017]).