|Claimant short name:||KELLER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||Scott Baron & Associates
By: Andrea R. Palmer, Esq.
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Alex J. Freundlich, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 3, 2021|
|See also (multicaptioned case)|
This is a motion by Kimberly Keller (Movant) for an order granting her leave to file a late claim against the State of New York (State) pursuant to Court of Claims Act (CCA) § 10 (6) and granting her discovery in aid of bringing an action pursuant to CPLR 3102 ( c ). The State has opposed the motion.
Movant asserts that she has a claim for money damages for personal injuries she sustained on December 23, 2019 when she tripped, allegedly on a roadway defect on Newbridge Road in East Meadow, New York, and suffered a broken ankle. A notice of intention to file a claim (NOI) was not filed within ninety days of the accrual of the claim as ordinarily would be required under CCA § 10 (3). However, due to the Covid-19 pandemic state of emergency, an Executive Order was issued on March 20, 2020 tolling statutes of limitations and other filing requirements, including those under CCA § 10 (b) (see Foy v State, 71 Misc 3d 605 [Ct Cl 2021]). The executive order, extended seven times, ultimately expired on November 3, 2020 (id). "A toll suspends the running of the applicable period of limitation for a finite time period...and '[t]he period of the toll is excluded from the calculation of the time in which the [claimant] can commence an action'" (id, quoting Chavez v Occidental Chem Corp, 35 NY3d 492, 505, n 8 ).
Since the ninety day period would have expired on March 22, 2020, two days after the March 20, 2020 Executive Order, Movant had two days from the end of the tolling period on November 3, 2020 or until November 6, 2020 to timely file a NOI. It is undisputed that no NOI was filed during those few days or at any point thereafter. Rather, Movant filed this motion on February 24, 2021.
Motion for Late Claim Relief
CCA § 10  provides that "[a] claimant who fails to file or serve upon the attorney general a claim or . . . a notice of intention . . . within the time limited . . . for filing or serving upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time 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." The statute further provides that upon an application for late claim relief, "the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy." This Court has broad discretion in deciding a motion to permit the late filing of a claim (Calverley v State of New York, 187 AD3d 1426 [3d Dept 2020]; Matter of Barnes v State of New York, 164 AD3d 977 [3d Dept 2018]; Williams v State of New York, 137 AD3d 1579 [4th Dept 2016], appeal dismissed, lv denied 28 NY3d 958 ).
In accordance with the above-cited provisions of CCA § 10 [b], the Court has discretion to grant a motion allowing a potential claimant to file a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not yet expired. "Thus, the first issue for determination upon any late claim motion is whether the application is timely" (Kaplan v State, UID No. 2018-040-098 [Ct Cl, McCarthy, J., Oct. 25, 2018]). Here, the motion is timely because it was filed within three years of the accrual on on December 23, 2019 in accordance with the time limit for asserting a personal injury claim pursuant to CPLR 214 . In further satisfaction on CCA § 10 , the proposed claim accompanies the motion as an exhibit.
Next, since Movant has satisfied these threshold criteria, the Court then must weigh the six factors set forth above in CCA § 10  (Plate v State of New York, 92 Misc2d 1033, 1036 [Ct Cl 1978]). A movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ; Casey v State of New York, 161 AD3d 720 [2d Dept 2018], lv to app denied, 32 NY3d 903 ). "No one factor is deemed controlling, nor is the presence or absence of any one factor determinative" (Stirnweiss v State of New York, 186 AD3d 1444, 1445 [2d Dept 2020]). However, the burden rests with a movant to persuade the Court to grant a late claim motion (Frederick v State of New York, 23 Misc3d 1008, 1015 [Ct Cl 2009], citing Matter of Flannery v State of New York, 91 Misc2d 797 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. While, as the State argues, law office failure is not an acceptable excuse (see, e.g., Casey v State of New York, supra), this lack of excuse alone is not an absolute bar to a late claim application (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys, 55 NY2d 979, 981 ; 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 (id).
Here, Movant alleges that the law office was closed until June 9, 2020. Movant further asserts that when the office reopened only a skeleton crew was working due to the layoffs necessitated by the pandemic shut down and that the small number of remaining attorneys had to "play catch up." Given the extraordinary circumstances of the past sixteen months, the Court finds that this factor tips in favor of the Movant.
The next three factors to be addressed - whether the State had notice of the essential facts constituting the claim, whether the State had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a NOI resulted in substantial prejudice to the State - are interrelated and will be considered together.
The delay in filing the instant motion was almost fourteen months from the date of the accident but only one hundred and ten days from the expiration of the tolling period. In other words, the extent of the delay and any resulting lack of opportunity to investigate and potential prejudice is attributable to the state of emergency. Under ordinary circumstances a delay in the range of 110 days would not result in a denial of late claim relief (see e.g. Stirnweiss v State of New York, 186 AD3d 1444 [2d Dept 2020] [delay of fourteen weeks considered minimal]; Heyward v State of New York, UID No. 2003-033-015 [Ct Cl, Lack, J., June 30, 2003][late claim relief granted where delay was 100 days]; Cajal v State of New York, UID No. 2001-016-035 [Ct Cl, Marin, J., May 9, 2001][late claim relief granted where delay was 110 days]).
Morever, "it is generally recognized that prejudice is more likely to result where a proposed claim involves conditions (such as ice or snow) which are 'transitory in nature' (Vidal v State of New York, UID No. 2021-041-001 [Ct Cl, Milano, J., Jan 4, 2021], quoting Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]). Here, a pothole is not transitory in the same manner as snow and ice. Furthermore, concerns that the pothole may have changed in character over the fourteen months are mitigated by the Google Maps images dated before the alleged accident and photographs taken shortly thereafter. In light of these photographs, any prejudice may not be "substantial" as required by CCA § 10 (b).
Given the circumstances of the pandemic and the remedial purposes of the late claim provisions of the CCA, which were "designed to vest in the Court of Claims broader discretion than previously existed to permit late filing and indicated a strong concern that litigants with meritorious claims be afforded their day in court" (Garcia v State of New York, UID No. 2021-040-013 [Ct Cl, McCarthy, J., April 5, 2021], citing Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]), this factor balances, albeit slightly, in Movant's favor.
The fifth item to be considered is whether Movant has another remedy available, a factor for which there can be no opposition. Since this was a trip and fall on a State roadway, there appears to be no remedy other than a claim in this Court.
The sixth and most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (see Shah v State of New York, 178 AD3d 871 [2d Dept 2019], lv to appeal dismissed, 35 NY3d 982 ; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not require a movant to establish definitively the merit of the claim, or overcome all legal objections thereto, in order for the Court to grant a motion for late claim relief (see Matter of Santana v New York State Thruway Auth., 92 Misc2d 1 [Ct Cl 1977]). A movant need only establish the appearance of merit; he or she does not need to demonstrate a prima facie case at this stage of the proceedings. "We cannot say, at this stage in the proceedings, that the claim is 'patently groundless', or that the [Movant] may not be able to show, after a greater development of the facts, that [s]he has a valid cause of action" (Goldberg v State of New York, 122 AD2d 248, 249 [2d Dept 1986]). Accordingly, Movant has sufficiently set forth facts that establish the appearance of merit of her claim and this factor balances in her favor.
In sum and as noted above, given the Covid 19 national emergency and the burdens it created, the Court will exercise its discretion to grant late claim relief.
Motion for Disclosure in Aid of Bringing an Action
The Claimant may obtain the documents it seeks to obtain by way of this branch of her motion via Freedom of Information Law requests (see Public Officers Law, Art 6). Furthermore, since this order will require service of the claim within forty-five days, there is no need for pre-action discovery.
In accordance with the foregoing, it is:
ORDERED, that Movant's motion for leave to file a late claim pursuant to CCA § 10 (b) is granted; and it is further
ORDERED, that Movant's motion for disclosure in aid of bringing an action pursuant to CPLR 3102 ( c ) is denied; and it is further
ORDERED, that within forty-five (45) days of the filing of this Decision and Order, Movant shall serve and file a properly verified claim in the form of the proposed claim annexed to her moving papers and shall comply with all of the requirements of the CCA and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with CCA § 11-a.
June 3, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims