Defendant's pre-answer motion to dismiss tort claim arising from a motor vehicle accident on a state road granted on the grounds that both the notice of intent and claim failed to properly identify the location of the accident or specify the nature of the claim. Claimants' cross motion to amend the claim was denied because a jurisdictionally deficient claim cannot be amended. Claimants' cross motion for permission to serve a late claim denied without prejudice since the factors on the proof submitted do not weigh in their favor.
|Claimant(s):||PAUL J. SHEEHAN and LAUREN E. SHEEHAN|
|Claimant short name:||SHEEHAN|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||LIPSITZ GREEN SCIME CAMBRIA, LLP
BY: GREGORY P. KRULL, ESQ.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 9, 2021|
|See also (multicaptioned case)|
The following papers were read on defendant's motion to dismiss (M-96785) and claimants' cross motion to file and serve an amended claim or alternatively to file and serve a late claim (CM-96830):
1. Notice of Motion with Affirmation of Thomas G. Ramsay, AAG and attached exhibits, filed May 10, 2021;
2. Affidavit of Merit of Gary Wright with attached exhibits, sworn to May 21, 2021;
3. Affidavit of Paul J. Sheehan with attached exhibits, sworn to May 24, 2021;
4. Notice of Cross Motion with Affirmation of Gregory Krull, Esq., and attached exhibits, filed June 2, 2021;
5. Affirmation of Thomas G. Ramsay, AAG, with attached exhibits, affirmed July 13, 2021;
6. Reply Affirmation of Gregory P. Krull, Esq., with attached exhibits, affirmed July 14, 2021.
Before the Court are two motions. In response to claimants' tort claim arising from a motor vehicle accident, the defendant filed a pre-answer motion to dismiss pursuant to Court of Claims Act § 10 (3) and § 11 (b), and CPLR 3211 (a) (2) and 3211 (a) (7). The claimants crossed moved for permission to amend their claim, or in the alternative, for permission to file a late claim. For the reasons set forth below, the defendant's motion to dismiss is granted and the claim is dismissed, the claimants' motion to amend is denied with prejudice, and their alternative motion for permission to file a late claim is denied without prejudice.
This claim arose from a one-vehicle accident on July 4, 2020 at approximately 5:00 p.m. Claimant Paul J. Sheehan, the driver of the rented van, along with his wife, Lauren E. Sheehan, the sole passenger, alleged in the notice of intent to file a claim and the claim that while "westbound on Route 20A at or near 4228 Varysburg Road (Route 20A) [the van] was caused to unexpectedly and without warning swerve off the roadway and crash off the shoulder of the road, resulting in serious injuries to the Claimants." (claim at 2, ¶ 5.) In addition, they alleged that the accident was as a "result of the negligence, carelessness, recklessness and/or unlawful conduct on the part of the agents, servants and/or employees of the STATE OF NEW YORK, furthermore, in the negligent and improper design, construction, ownership, maintenance and defects of the subject roadway." (Id at ¶6.)
Defendant's Motion to Dismiss
The basis for the defendant's pre-answer motion to dismiss is the insufficient identification of the location of the accident or description of the nature of the claim in the notice of intent to file a claim and the claim, which failed to comply with the pleading requirements of Court of Claims Act § 11 (b), and thereby failed to obtain subject matter jurisdiction over defendant. As a consequence, the claim was untimely per Court of Claims Act § 10 (3). Alternatively, defendant contends that neither the notice of intention to file a claim, nor the claim state a cognizable cause of action against the defendant, so dismissal is also appropriate under CPLR 3211 (a) (7).
In examining whether the claimants met the pleading requirements for commencing an action, the Court must start with the Court of Claims Act § 8 which sets forth the State's waiver of immunity from liability and action for money damages. In order to benefit from the waiver, claimants must comply with the limitations of article II of the Court of Claims Act, which includes § 11 (see Lepkowski v State of New York, 1 NY3d 201, 206 ). Section 11 (b) sets forth five elements that must be specified in the claim including: the nature of the claim; the time when and place where it arose; the items of damage or injuries claimed to have been sustained; and the total sum claimed. "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability." (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted].) New York Courts have "strictly construed" the statutory requirements in §11 (b) of the Court of Claims Act. (Lepkowski, 1 NY3d at 207 [internal quotation marks and citations omitted].) A claimant's failure "to comply with the substantive pleading requirements of Court of Claims Act § 11 (b) is a defect resulting in the lack of subject matter jurisdiction, which is not waivable." (Somer v State of New York, UID No. 2014-044-525 [Ct Cl, Schaewe, J., June 5, 2014] [internal citations omitted].) This is so, even if the mandated dismissal of the claim results in a harsh outcome (see Kolnacki v State of New York, 8 NY3d 277, 281 ; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010], lv dismissed 15 NY3d 911, ; Morra v State of New York, 107 AD3d 1115 [3d Dept 2013]).
An additional requirement regarding pleadings is set forth in CPLR § 3013:
" '[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.'. . . The principle purpose of a pleading, particularly a claim or complaint, is to provide notice, to advise the opposing party of the claim (Foley v D'Agostino, 21 AD2d 60)."
(Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, PJ., Feb. 7, 2006].) Accordingly, "[u]nder New York rules of procedure, conclusory averments of wrongdoing are insufficient... unless supported by allegations of ultimate facts (internal quotation marks and citations omitted)." (Graziosi v State of New York, UID No. 2014-028-524 [Ct Cl, Sise, PJ., July 11, 2014].)
Furthermore, although as a general rule the law requires courts to liberally interpret pleadings focusing on substance over form, "there are nevertheless some essential, common sense limits that must be recognized." (Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, PJ., Feb. 7, 2006].) A claim must be dismissed when conclusory allegations make it impossible to discern a viable cause of action. (Lepkowsi, 1 NY3d at 209-210.) New York Courts have repeatedly held that defendants are not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege." (Lepkowski, 1 NY3d at 208 [internal citation omitted].)
The Court concurs with the defendant's contentions that claimants failed to meet the pleading requirements set forth Court of Claims Act § 11 (b). As to the location of the accident, both the notice of intent and the claim state the Sheehan vehicle was "westbound on Route 20A at or near 4228 Varysburg Road" when it "unexpectedly" swerved off the roadway and "crash[ed] off the shoulder." Based on Google Maps (1) , 4228 Varysburg Road is marked by a small patch of asphalt on the south side of the road with no nearby structures. Mr. Sheehan's affidavit submitted in opposition to the motion to dismiss did not state an address but described the location as "westbound on Route 20A just west of the intersection of Route 238." (¶ 2.) In further support of the location, he describes swerving to the right (to the north), down a slope and then contacting an intersecting "elevated windmill access road." (id.) He attached a Google Maps printout as an exhibit, on which he marked the location his vehicle allegedly left the north side of the road, which is near a farm house, barns and silos. The Police Accident Report he submitted described the location of the accident as .25 miles west of State Route 238 at an "access driveway in the area of 4187 Route 20A". (id., exhibit B.) Google Maps shows the wind turbine is west of the farm located at 4187 Varysburg Road. Therefore, if the State relied on the address of 4228 Varysburg Road as stated in the notice of intent and the claim, it would be directed to the wrong location and on the opposite side of the road.
Likewise, the conclusory allegations as to defendant's liability in the notice of intent and claim prevented any investigation of the incident. The boilerplate list of allegations included negligent conduct of state employees, ownership, construction, maintenance and defective design of the "roadway." There is no mention of the shoulder, the ditch, or the intersecting access driveway. This list clearly fails to describe how or why the accident occurred, and how and why the defendant should be held liable. (Brooklands v State of New York, UID No. 2017-051-009 [Ct Cl, Martin, J., Jan. 31, 2017], affd 180 AD3d 1031, 1032 [2d Dept 2020]; Bonaparte v State of New York, 175 AD2d 683, 683 [4th Dept 1991]; Patterson v State of New York, 54 AD2d 147, 150 [4th Dept 1976], affd 45 NY2d 885 .)
The cases cited by the claimants are readily distinguishable because they all involve some additional information to allow the State to identify the location of the accident and basis for its liability. In Deep v State of New York, 56 AD3d 1260, 1261 (4th Dept 2008), the Court found that naming a street where an accident occurred as a result of allegedly negligent driving by a State agent was sufficient. (accord Matthias v State of New York, 6 Misc 3d 1025[A] [Ct Cl 2005].) In Davila v State of New York, 140 AD3d 1415 (3d Dept 2016), the state agency performed an extensive investigation into the death of claimant's decedent following a fire at a State owned and operated residential facility, which investigation allowed defendant to infer the basis for its liability(2) . In Heisler v State of New York, the claimant identified a school building used as a State-authorized polling place where he fell allegedly due to inadequate lighting and improper maintenance of the exterior premises. (78 AD2d 767, 768 [4th Dept 1980].) Finally, a review of the entire quote of the Court of Appeals in Connaughton v Chipolte Mexican Grill, Inc.,cited only in part by the claimants, supports the defendant's argument:
"On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), '"[w]e accept the facts as alleged in the complaint as true, accord plaintiff [ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 ). "At the same time, however, allegations consisting of bare legal conclusions . . . are not entitled to any such consideration" (*142 Simkin v Blank, 19 NY3d 46, 52  [internal quotation marks omitted]). Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery (see e.g. Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 134 [1st Dept 2014]; see also John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3211:22 ["(T)he (CPLR 3211 [a] ) motion is useful in disposing of actions . . . in which the plaintiff has identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action"])."
(Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141-42 .) Here, the initial pleadings contained only bare list of legal conclusions, without supporting facts, as to defendant's acts of negligence that were the proximate cause of their motor vehicle accident.
Based on the above analysis, defendant's motion to dismiss is granted.
Motion to Amend Claim
Claimants cross moved for leave to file an amended claim in order to provide a more definite location of the accident and a more detailed explanation of defendant's alleged negligence. Although, generally, courts liberally grant leave to amend a pleading, a claim cannot be amended if it originally failed to meet the pleading requirements of Court of Claims Act § 11 (b). This is because the original claim was jurisdictionally defective and therefore a nullity. (see Kolnacki v State of New York, 8 NY3d 277, 280-281 ; Lepkowski v State of New York, 1 NY3d 201 ; Matter of DeMairo v State of New York, 172 AD3d 856 [2d Dept 2019]; Hogan v State of New York, 59 AD3d 754 [3d Dept 2009]; and Barnett v City University of New York, UID No. 2017-053-539 [Ct Cl, Sampson, J., July 18, 2017].) As such, the Court is required to dismiss claimants' motion to amend their claim with prejudice.
Motion for Permission to File a Late Claim
Alternatively, claimants cross moved for permission to file a late claim. The Court must first determine whether the application for late claim relief is timely. Court of Claims Act § 10 (6) requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Since claimants have filed their motion within three years of the date the cause of action accrued, it is timely (CPLR 214).
Court of Claims Act § 10 (6) grants this Court discretion to allow filing a late claim upon consideration of certain factors enumerated in the statute and 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" (Cabrera v State of New York, UID No. 2011-039-220 [Ct Cl, Ferreira, J., Mar. 16, 2011][internal quotations and citation omitted]). Court of Claims Act § 10 (6) sets forth, at a minimum, six factors to be weighed when deciding whether to grant an application to file a late claim, with no one factor being more important because the presence or absence of any one factor is not controlling. (id.) Nevertheless, merit is the most important and weighted factor because it would be imprudent to permit litigation to proceed without clear evidence that it is not a baseless lawsuit. (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Crespo v New York State Off. for People with Disabilities, 55 Misc 3d 333, 337 [Ct Cl 2016].)
Merit is evaluated using the two prong test set forth in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1, 11 [Ct Cl 1977]). The proposed claim "must not be patently groundless, frivolous, or legally defective," and the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (id). With regard to merit, unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199, 202 [Ct Cl 1992]).
In order for claimants to set forth a prima facie case of negligence, they must "demonstrate: (1) a duty owed by the defendant to the [claimants]; (2) a breach of that duty; and (3) an injury suffered by the [claimants] which was proximately caused by the breach." (Shelton v State of New York, UID No. 2009-044-513 [Ct Cl, Schaewe, J., Mar. 2, 2009] [internal quotations and citation omitted].) Although defendant has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who travel upon them, defendant is not an insurer of the safety of its highways. (see Tomassi v Town of Union, 46 NY2d 91, 97 .) The mere fact that a motor vehicle accident occurred causing serious injuries does not render the defendant liable. (id.) Claimants must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take reasonable measures to correct the condition. (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ). Moreover, the defendant is not liable for its negligence unless it was the proximate cause of the accident. (Hamilton v State of New York, 277 AD2d 982, 983 [4th Dept 2000].)
Claimants rely on the affidavit of Gary Wright, who was formerly employed by the NYS Department of Transportation as a civil engineer 1, but whose professional qualifications were not explained and who offered his opinion as an accident reconstruction expert without laying a proper foundation for such. (Costanzo v County of Chautauqua, 110 AD3d 1473, 1473 [4th Dept 2013].) Mr. Wright assumed that the Sheehan vehicle left the road, entered the drainage ditch, then hit the side of the elevated "windmill access road" which launched the vehicle into the air and into the field. This description appears to have come directly from the Police Report, which is both hearsay and not an accident reconstruction report. Mr. Sheehan's affidavit is drafted to mirror this description and not stated to be based on his recollection of the accident; since Mr. Sheehan told the trooper that he was possibly asleep when he went off the road, there is no proof that he recalls any aspect of the accident.
Mr. Wright described the numerous measurements he made at the scene on November 18, 2020 of the slope of the north side of the shoulder, concluding that it was "narrow, excessively steep, dangerous and not in compliance with applicable safety standards." (aff. of Gary Wright, ¶ 5) He also opined that the windmill access road "intersected and restricted the clear zone beyond the roadway slope." (id., ¶ 9) He concluded that "[t]he windmill road slope, in combination with the hazardous roadway slope, resulted in a violent impact when the errant Sheehan van contacted the windmill road . . . ." (id.) He also opined that "this portion of Route 20A required shielding placed on the north side of the shoulder to prevent errant vehicles from exiting the roadway." (id., ¶ 10) He concluded that the roadway and adjacent slope was hazardous and contained design defects that were the proximate cause of the accident.
Mr. Wright's conclusion is based wholly on speculation and is without probative value. There is no reference to the "safety standards" relied upon in reaching his opinions. There is no reference to the speed or angle of the van when it left the road or when it contacted the access road. There is no determination of what caused the van to leave the road, including mechanical failure affecting steering, and whether Mr. Sheehan was asleep at the time. Furthermore, Mr. Wright's opinion on the hazard created by the steep slope is that of a roll over, which did not occur.
Accepting for a moment Mr. Wright's description of the trajectory of the vehicle after leaving the road and his measurements, the Court finds that his opinion failed to articulate support for his violations of numerous "safety standards." Critically, Mr. Wright failed to acknowledge and address the "vintage engineering rule" or the "vintage highway rule", which holds that
"[T]he State is not obligated to undertake expensive reconstruction of an older highway, even where highway design standards have changed since the original construction, or, stated another way, that the adequacy of the highway should be judged according to engineering standards prevailing at the time the highway was designed and built (Van De Bogart v State of New York, 133 AD2d 974)."
(Gerwitz v State of New York, UID No. 2002-005-025 [Ct Cl,Corbett, J., June 2, 2003], affd 12 AD3d 1086 [4th Dept 2004].) As the moving parties, claimants had the burden of initially addressing this well-established rule and submitting the requisite proof to overcome it, which they failed to do.
In its response, defendant established that Route 20A was originally constructed in 1916 and reconstructed in 1926, in compliance with the engineering standards of the day, without any further major reconstruction thereafter. Accordingly, as the defendant correctly argued, it was not under any obligation "to undertake expensive reconstruction simply because highway safety design standards have changed" from the time Route 20A was original constructed and reconstructed. (Van De Bogart v State of New York, 133 AD2d 974, 976 [3d Dept 1987].) The requirement to improve a highway to current day standards is only triggered where there is a history of accidents or it undergoes significant repairs or reconstruction. (Cave v Town of Galen, 23 AD3d 1108, 1108-1109 [4th Dept 2005]; see Vizzini v State of New York, 278 AD2d 562, 563 [3d Dept 2000] [Since the asphalt culvert upon which claimant fell met the design standards in effect when the highway was constructed in 1931, the culvert is not rendered defectively designed as a result of the change in design standards].)
Furthermore, the alleged absence of a "clear zone" relied upon by Mr. Wright in his criticism of the State did not become part of highway engineering practice until the late 1960's. (Dahl v State of New York, 13 Misc 3d 590, 597 [Ct Cl 2006], affd 45 AD3d 803 [2d Dept 2007]; see also Guan v State of New York, UID No. 2007-016-019 [Ct Cl, Marin, J., May 24, 2007].) His opinion based on this concept can be given no weight.
Neither did claimants demonstrate that defendant undertook a "significant repair or reconstruction" that would have triggered an obligation to comply with present day design standards. Claimants submitted a 1997 proposal for "PAVEMENT REPAIRS ON ROUTE 20A IN THE TOWNS OF ORANGEVILLE AND WARSAW" as evidence of a "significant repair or reconstruction" but without evidence of the extent to which that work was ever completed. The affidavit of the State's licensed engineer attached the Road History of this highway, which indicated that "pavement repairs" were done in 1997 and "resurf[aced]" in 1998, with only general maintenance thereafter. These activities do not meet the "significant repair or reconstruction" standard. (Noorzi v State of New York, 179 AD3d 478, 479 [1st Dept 2020]; see also Hubbard v County of Madison, 93 AD3d 939, 944 [3d Dept. 2012] [Merely widening a roadway and overlaying it with new pavement, as opposed to "ripping it out and rebuilding it or reconfiguring it," does not constitute significant repair or reconstruction; Hay v State of New York, 60 AD3d 1190, 1192 [3d Dept. 2009] [project to repave the road did not give rise to an obligation to comply with modern safety standards inasmuch as there was no significant repair, modernization or correction of the road itself]; Fan Guan v State of New York, 55 AD3d 782, 784-85 [2d Dept 2008] [replacement of the median, the repaving of the road surface, and the improvements made to the drainage system did not materially alter the roadway itself and did not constitute significant repair or reconstruction such that compliance with modern highway design standards was required]; and Benjamin v State of New York, 203 AD2d 629, 630 [3d Dept 1994] [project undertaken by DOT was a repaving project undertaken by the regional Maintenance Unit and not a reconstruction project by the State's resident engineer].) Moreover, it has long been held that "while the State may have had an opportunity [to make improvements to the ditches along the highway,] it did not have an obligation to do so or a duty to provide the public with 'more complete protection' (Schwartz v New York State Thruway Auth., 61 NY2d 955, 957 , quoting Weiss v Fote, 7 NY2d 579, 584 )." (Noorzi v State of New York, 60 Misc 3d 1229(A) [Ct Cl 2018], affd 179 AD3d 478 [1st Dept 2020].)
Finally, as to common negligence based on notice of a defective condition, claimants did not demonstrate a history of similar accidents at the site of their accident, and the defendant confirmed it has no knowledge of such.
"Absent proof of a dangerous condition, the State is not required to upgrade
any roadway to conform to new standards which evolved subsequent to the
original construction (see Merino v New York City Tr. Auth., 218 AD2d 451
[1st Dept 1996], affd 89 NY2d 824 ; Trautman v State of New York,
179 AD2d 635, 636 [2d Dept 1992] [State has no duty to rebuild to conform
to standards which evolved subsequent to construction])."
(Noorzi v State, 60 Misc 3d 1229(A) [Ct Cl 2018], affd 179 AD3d 478 [1st Dept 2020].)
Accordingly, it is:
ORDERED that defendant's motion to dismiss (M-96785) is granted and claimants' claim no. 136170 is dismissed. Claimants' cross motion (CM-96830) for permission to amend their claim is denied with prejudice and their alternative motion for permission to file a late claim is denied without prejudice.
September 9, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims
1. "[O]ur Court may take judicial notice of Google Maps." (People ex rel. Johnson v Superintendent, Adirondack Corr. Facility, 36 NY3d 187, 249, dissent n 14 .
2. The fact that a NYS Trooper documented the Sheehan accident on an accident report form is not the equivalent of conducting an investigation into the negligence of state employee or agency. The only inference of any fault mentioned in the report is of Mr. Sheehan possibly falling asleep at the wheel. There is no mention of liability of the State and no indication that the Trooper conducted an investigation or accident reconstruction analysis.