Application for late claim is granted.
|Claimant short name:||McCargar|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE THRUWAY AUTHORITY|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||THE CARLISLE LAW FIRM, P.C.
By: Edward A. Betz, Esquire
|Defendant's attorney:||GOLDBERG SEGALLA LLP
By: Heather K. Zimmerman, Esquire
|Third-party defendant's attorney:|
|Signature date:||August 16, 2019|
|See also (multicaptioned case)|
Movant brings a third motion pursuant to Court of Claims Act section 10 (6) for
permission to file a late claim. Defendant opposes the motion.
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 Warner's 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 and 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.
The Court denied Movant's two prior requests for relief without prejudice due to deficiencies in the applications and the proposed claim (M- 91435 and M-92523). The Court specifically noted that Movant did not support her asserted excuse for the failure to timely serve a notice of intention or file and serve a claim, and found that the proposed claim was legally defective, based upon the requirements of Court of Claims Act section 11 (b) for failing to describe where the alleged broken pavement was at the rest stop.
In this application, Movant still has not provided any support for her asserted extended hospitalization and convalescence after her injury that prevented her from timely filing and serving a claim. Movant has now provided an aerial view of the rest stop with a circle identifying the location of her fall. Based upon these submissions, Movant does not have a valid excuse for her failure to timely file a timely claim in this matter. Movant has, however, remedied the significant defect in her previous proposed claim by specifically identifying the location where she alleges that she fell. This, coupled with the other information and notice provided to Defendant the day of her injury, minimally meets the requirements for granting a late claim application.
Accordingly, Movant's application is GRANTED. Movant is directed to properly file and serve the proposed claim and pay the filing fee or file a motion, affidavit, or certification pursuant to CPLR 1101 within 30 days of the date this Decision and Order is filed with the Clerk of the Court.
August 16, 2019
Syracuse, New York
DIANE L. FITZPATRICK
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 attachments thereto.
3) Affirmation of Heather K. Zimmerman, Esquire, in opposition, with exhibits attached thereto.
4) Memorandum of Law in opposition dated June 18, 2019.