New York State Court of Claims

New York State Court of Claims
McCargar v. NEW YORK STATE THRUWAY AUTHORITY, # 2018-018-923, Claim No. NONE, Motion No. M-91435


Late claim application denied pursuant to CCA 11 (b).

Case information

UID: 2018-018-923
Claimant(s): LOUISE McCARGAR
Claimant short name: McCargar
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-91435
Cross-motion number(s):
Claimant's attorney: THE CARLISLE LAW FIRM, P.C.
By: Edward A. Betz, Esquire
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Bonnie Gail Levy, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 26, 2018
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Movant brings a motion pursuant to Court of Claims Act section 10 (6) seeking permission to bring a late claim. Defendant opposes the motion.

Court of Claims Act section 10 (6) allows a claimant who has failed to properly 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 such a claim, 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 [6]). Here, Movant's application is timely (Court of Claims Act 10 (6); CPLR 214 [5]).

The proposed claim seeks damages for Movant's personal injuries arising from a fall at a rest area on the New York State Thruway. Movant alleges that on May 4, 2017, she was traveling with family and stopped at the "Warners" rest stop. As she was walking back to the vehicle, she stepped off of a curb and onto broken pavement, which caused her to fall, break her femur and injure her knee. She was taken by ambulance to St. Joseph's Hospital and then later had a three-week rehabilitation at United Helpers-Maplewood Campus in Canton, New York.

In considering an application for permission to serve a late claim, the Court in its discretion, may permit the late filing of the proposed claim after consideration is given to the six factors listed in the statute. No one factor is determinative (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965[4th Dept 1994]).

The first factor, whether the delay in filing the claim is excusable weighs against granting Movant's application. Although Movant may have a reasonable excuse, she has not adequately provided the necessary supporting facts. She indicates that she had a "lengthy stay" in the hospital and then a three-week inpatient rehabilitation, but does not specify the time frame involved. Nor does she indicate the extent of her convalescence once at home (Mittermeier v State of New York, 101 AD3d 426 [1st Dept 2012]).

The factors of whether the New York State Thruway Authority had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State Thruway Authority will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant asserts that when she fell, the manager of the rest area and a State Trooper responded to the accident. A State Police incident report is attached to Movant's motion. Defendant does not deny that a manager at the rest stop responded to the accident. The Court finds that these factors weigh in favor of granting the application, as the Thruway Authority had timely notice of the incident. Although a description of the location of the broken pavement is lacking in the supporting documents, with the prompt notice to the manger and the State Trooper, an opportunity to investigate was presented negating any prejudice.

The next factor, whether the claim appears to be meritorious, is a critically important factor. 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). One requirement with any application for late claim relief is the submission of a proposed claim "containing all of the information set forth in section eleven" of the Court of Claims Act (Court of Claims Act section 10 [6]). Movant has attached an unsigned and unverified proposed claim as Exhibit B. The proposed claim, Movant's counsel's affirmation, and Movant's affidavit describe the accident similarly - occurring when Movant stepped off of the curb onto "broken pavement." However, as Defendant points out, there are many areas with curbing at this rest stop and there is no other description of where this broken pavement was located. Although seemingly incongruous with a finding of timely notice and an opportunity to investigate, the requirements of Court of Claims Act section 11 (b) are jurisdictional prerequisites to bringing a claim, even in the absence of prejudice to the State Thruway Authority (Wilson v State of New York, 61 AD3d 1367 [4th Dept 2009]). Imprecise identification of the specific location where an accident occurred has been found to meet the 11 (b) requirements where the State had notice of the incident, but the description of where the accident occurred was more informing than set forth in the proposed claim (see Acee v State of New York, 81 AD3d 1410[4th Dept 2011]; see also Acee v State of New York, UID No. 2009-031-051 [Ct Cl, Minarik, J., Sept. 28, 2009]). Here, the proposed claim fails to state with adequate definiteness where this incident occurred and it is not signed or verified. The failure to comply with the requirements of Court of Claims Act section 11 (b) renders the proposed claim legally defective (see Oakland v State of New York, UID No. 2017-045-020 [Ct Cl, Lopez- Summa, J., June 19, 2017]; Alpert v State of New York, UID No. 2017-040-027 [Ct Cl, McCarthy, J., March 1, 2017]; Mosby v State of New York, UID No. 2014-018-543 [Ct Cl, Fitzpatrick, J., Nov. 13, 2014]; Nieves v State of New York, UID No. 2014-038-517 [Ct Cl, DeBow, J., April 30, 2014]; Doe v State of New York, UID No. 2013-048-125 [Ct Cl, Bruening, J., Dec. 19, 2013]; Doe v State of New York, UID No. 2007-042-516 [Ct Cl, Siegel J., July 23, 2007]; see generally Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Lepkowski v State of New York, 1 NY3d 201, 209 [2003]). This factor weighs against granting Movant's application.

The final factor is whether the Movant has any other available remedy. Based upon the allegations in the proposed claim and Movant's assertion, she has no other remedy.

Upon balancing all of the factors in Court of Claims Act section 10 (6), the Court DENIES Movant's application without prejudice to submitting a new application in accordance with Court of Claims Act section 10 (6) with a proper proposed claim.

March 26, 2018

Syracuse, New York


Judge of the Court of Claims

The Court has considered the following in deciding this motion:

1) Notice of Motion.

2) Affirmation of Edward A. Betz, Esquire, in support with attachment and exhibits attached thereto.

3) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in opposition.