Motion to file a late claim, single car MVA due to puddle on highway. Claim is for negligent roadway design.
|Claimant(s):||JOHN M. GRAY and MICHELE GRAY|
|Claimant short name:||GRAY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Michael G. O'Neill, Esq.|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Alex J. Freundlich, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 7, 2020|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimants' Notice of Motion; Claimants' Affirmation in Support with annexed Exhibits A-B; John M. Gray Affidavit in Support with annexed Exhibits A-C; Defendant's Affirmation in Opposition with annexed Exhibit A; and Claimants' Affirmation in Reply A-B.
Claimants, John M. Gray and Michele Gray, have brought this motion pursuant to Court of Claims Act (CCA) § 10 (6) seeking an order granting permission to file a late claim. Defendant, the State of New York, opposes the motion.
Claimant, John Gray, alleges in the proposed claim that on October 12, 2018 at 5:30 a.m. he was driving a motor vehicle westbound on the Southern State Parkway, about .5 mile east of Route 110(2) . Mr. Gray was driving at the aforesaid location when his vehicle hit a puddle which caused his vehicle to hydroplane to the right and strike another vehicle. Mr. Gray's vehicle eventually left the roadway and collided with some trees causing him to sustain serious injuries. Claimants allege that the incident was caused by the negligence of the New York State Department of Transportation in maintaining the roadway at the subject location. Specifically, they assert that defendant failed to maintain the left lane of the roadway in its original design specification, which requires that the cross slope of the left lane be approximately 1.5 to 2 degrees. They contend that the failure to maintain the roadway as designed caused water to accumulate in the roadway, which was the cause of Mr. Gray's vehicle to lose control. Claimants further allege that defendant failed to conduct proper inspections of the roadway, failed to detect the dangerous condition that prevented the roadway from draining properly and failed to use proper care in the maintenance of the roadway.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [3d Dept 2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10 (6) (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious; and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.
Claimants do not offer any legally acceptable excuse for the 13 month delay in initiating an action by seeking leave to file a late claim (Casey v State of New York, 161 AD3d 720 [2d Dept 2018]).
The next three factors, notice, an opportunity to investigate and prejudice, are interrelated and as such will be considered together. Claimants concede that defendant did not have actual notice of the essential facts constituting the claim and consequently did not have the opportunity to investigate the circumstances underlying the claim. In regard to prejudice claimants argue that the defective slope of the roadway is not a transient condition and has not changed since the date of the accident. Nevertheless, the Court finds that defendant has been prejudiced by the 13 month delay in filing this motion. Claimants' expert concedes in his report that he had to rely on photographs of claimants' vehicle since it was no longer available to be inspected. Additionally, claimants' expert did not conduct a field investigation of the accident scene until a year after the accident and failed to state that the condition of the roadway was unchanged from the date of the accident even though he found puddling in the area. Thus the Court finds that, given the entirety of the circumstances involved in the present action, these factors are found to weigh against claimants' application.
Claimants do not appear to have another remedy available to them.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
Claimants failed to establish an appearance of merit through the motor vehicle crash report of S. Maurice Rached, PE, PTOE. Mr. Rached's report does not state that the condition of the roadway remained unchanged from the time of the accident to the date of his inspection 12 months later. Additionally, Mr. Rached infers, without taking any measurements, that because he observed rainwater ponding on the roadway a year after the accident that the slope of the roadway at the time of the accident must have been below 2%. Significantly, Mr. Rached does not attempt to explain, aside from a general conclusory allegation of improper maintenance, the cause of the condition of the roadway or how long before the accident the condition existed. Accordingly, the Court finds that this factor also weighs against the granting of claimants' motion.
Therefore, based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), claimants' motion is denied.
May 7, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims
2. Claimants provided coordinates in the proposed claim for the exact location of the accident.