Motion to file a late notice of intention. Motor vehicle accident, question as to serious injury/ threshold.
|Claimant short name:||DUNBAR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Jermaine Dunbar, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 20, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion; Claimant's Affidavit in Support with annexed Exhibits; and Defendant's Affirmation in Opposition.
Claimant, Jermaine Dunbar, a pro se inmate, has 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 alleges that on July 11, 2017 he was sitting on a bus at Downstate Correctional Facility when another State vehicle struck the bus causing claimant to sustain serious physical injuries. Claimant states that there were no seatbelts on the bus.
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 ). 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, Inc. 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.
Claimant does not offer any legally acceptable excuse for the delay in filing the claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.
The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. The allegations contained within claimant's proposed claim concern a motor vehicle accident between two State vehicles which occurred at a correctional facility parking lot. The Court finds that, given the entirety of the circumstances involved in the present action, these factors weigh in claimant's favor.
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]).
In order for a claim to "appear to be meritorious": (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).
Defendant argues that claimant has failed to set forth a serious injury sufficient to meet the requirements of CPLR 3016 (g) and Insurance Law § 5012 (d).
Insurance Law § 5102(d) defines a "serious injury" as:
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
Claimant states that as a result of the incident he received serious injuries to his back, neck and head which required physical therapy and medication. Claimant does not elaborate with any factual or medical information to support his conclusory assertions. This is insufficient to show the appearance of merit on a late claim application (see Matter of Edwards v State of New York, 119 Misc 2d 355 [Ct Cl 1983]; Delacruz v State of New York, UID No. 2018-018-927 [Ct Cl, Fitzpatrick, J., April 6, 2018]; Melendez v State of New York, UID No. 2016-049-032 [ Ct Cl, Weinstein, J., Aug. 17, 2016]; Richards v State of State of New York, UID No. 2006-036-504 [Ct Cl, Schweitzer, J., March 27, 2006]).
Claimant also alleges liability based on defendant's failure to provide a seatbelt to him on the bus. However, the failure to provide an inmate with a seatbelt during transport on a bus is inadmissible to establish negligence against defendant in civil cases. (Delacruz v State of New York, UID No. 2018-018-927 [Ct Cl, Fitzpatrick, J., April 6, 2018]; Figueroa v State of New York, UID No. 2003-009-61 [Ct Cl, Midey, J. Dec 18, 2003] affd 19 AD3d 1053 [4th Dept 2005]; see also VTL §§ 1229-c  & ). Consequently, the Court finds that claimant has failed to establish that his claim has the appearance of merit.
Lastly, it appears as though claimant may have an alternative remedy against the individual drivers of the motor vehicles in New York State Supreme Court.
Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10(6), claimants' motion is denied.
September 20, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims