Opinion
# 2013-010-011 Motion No. M-82331
04-15-2013
CARMELINA LIBASCI AND FRANK LIBASCI v. THE NEW YORK STATE THRUWAY AUTHORITY and THE STATE OF NEW YORK
Synopsis
Late claim application denied, no appearance of merit.
Case information
UID: 2013-010-011 Claimant(s): CARMELINA LIBASCI AND FRANK LIBASCI Claimant short name: LIBASCI Footnote (claimant name) : Defendant(s): THE NEW YORK STATE THRUWAY AUTHORITY and THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-82331 Cross-motion number(s): Judge: Terry Jane Ruderman LAW OFFICES OF WILLIAM A. GALLINA, PLLC Claimant's attorney: By: William A. Gallina, Esq. David L. Engelsher, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Defendant's attorney: By: The Law Offices of Kenneth Arthur Rigby, PLLC By: Kenneth Arthur Rigby, Esq. Third-party defendant's attorney: Signature date: April 15, 2013 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers numbered 1-3 were read and considered by the Court on movants' late claim application:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Affirmation in Opposition and Exhibits....................................................................2
Reply Affirmation and Exhibit..................................................................................3
Movants seek leave to serve and file a proposed claim alleging that at 11:40 a.m. on November 11, 2011, movants' vehicle, driven by Frank Libasci with Carmelina Libasci as a passenger, was involved in a six-car accident on the Tappan Zee Bridge, resulting in movants' personal injuries and property damage (Ex. K). The alleged negligence of the State and the New York State Thruway Authority (NYSTA) is in the ownership, operation, maintenance of the bridge and the supervision of the ongoing construction on the bridge. Specifically, movants allege that, due to defendants' negligence, an improperly secured garbage can was a contributing cause of movants' accident. In support of their application, movants submit their own affidavits stating that their vehicle stopped without incident when the car ahead of them stopped and that, "[a]fter some time" their vehicle was struck from behind by another vehicle (Ex. J, ¶ 3). Movants later learned that the car ahead of them stopped due to a large garbage pail in the roadway. According to the police accident report, six cars were involved in an accident due to a large garbage pail in the far left lane and movants' car was the second vehicle (Ex. A).
The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
The Court has considered the above six factors.
Movants' purported excuse for the nearly one year delay in seeking leave to file a late claim against the State and the NYSTA is that movants' counsel "did not become aware of the [sic] either Respondent's involvement in this matter until we received a response to the FOIL request" on August 30, 2012 (Attorney's Affirmation, ¶ 38). The Court does not find this to be a valid excuse for the inordinate delay. Further, the Court finds that this delay has substantially prejudiced defendants because they were not afforded the opportunity to timely investigate the circumstances underlying the claim (see Matter of Brown v State of New York, 6 AD3d 756 [3d Dept 2004] [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]; Nicometti v State of New York, 144 AD2d 1036 [4th Dept 1988] [delay was inexcusable and prejudiced the State because they had not investigated the accident]). Prejudice is even more likely to result in cases where a potential claim involves transitory conditions, as in the changing conditions of a construction site (see Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915 [4th Dept 1988] [State would be prejudiced by delay because of changing nature of construction site]). It is also noted that movants have another available remedy via the lawsuit they commenced against two of the drivers of the cars who struck movants' vehicle from behind and Tutor Perini Corp. (TPC) and its subcontractor, TDA Construction, Inc. (TDA) (Reply, Ex. A).
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 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" and movant's own unsubstantiated allegations do not show an appearance of merit (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]; Klingler v State of New York, 213 AD2d 378 [2d Dept 1995] [movant's unsupported opinion does not suffice to establish merit of their claim]).
In opposition to movants' application, defendants submit the Affidavit of Domenick Giovinazzo, a NYSTA Bridge Patrol Operator since 1983 who was patrolling the bridge on November 11, 2011 from 6:00 a.m. to 2:00 p.m. (Ex. 4). Giovinazzo performed patrols of the bridge "roughly every hour on the half hour" (id. at ¶ 4). At approximately 11:30 a.m., Giovinazzo observed "a small blue plastic barrel" in the left lane of traffic (id. at ¶ 6). Giovinazzo immediately stopped his truck and activated its emergency lights and devices. Giovinazzo explained that:
"[s]imultaneous to my coming to a stop, a car stopped safely in the left lane adjacent to my truck. A second car safely came to a stop behind that first vehicle in the left lane and eventually a third and a fourth vehicle safely came to a stop in back of them both. My partner exited my truck to retrieve the blue barrel and I heard a collision from in back of the cars already stopped adjacent to my truck, which then apparently forced vehicles already safely stopped into the second, and, in turn, first vehicles stopped safely in the left lane. My partner then retrieved the barrel."(id. at ¶ 7). According to Giovinazzo, "[t]here was no construction work or any other work going on in the travel/traffic lanes of the Bridge, northbound and/or southbound, at the time of the accident and none scheduled for that day because of the suspension of work for the Veterans' Day holiday weekend" (id. at ¶ 9).
Regarding the barrel, Giovinazzo maintained that it was not the property of the NYSTA as he had "personally inspected the barrel after the incident and note[d] that there was no name or other identifying marking on the barrel and that the barrel was empty" (id. at ¶¶ 11, 13). Additionally, he stated, "[f]urther, I am personally familiar with materials and equipment used by the construction contractors on the Bridge and I do not believe that the barrel was the property of any contractor doing work on the Bridge in or around November 2011" (id. at ¶ 12).
Defendants also present the Affidavit of Nicholas Choubah, a New York State Department of Transportation regional Design Engineer (Exs. 3, 3A) who establishes that the State does not own or operate the Tappan Zee Bridge; rather the NYSTA does. Additionally, Choubah maintains that the State was not a party to the contract between the NYSTA and TPC and neither the State nor the NYSTA was working on the bridge on the date of movants' accident (id.).
The Affidavit of Martin White, NYSTA engineer since 1990, along with a copy of the bid proposal of the contract work performed on the bridge by TPC was also submitted by defendants (Exs. 6, 6A). According to Martin, the State does not own or operate the bridge, was not performing any work on the bridge, and is not a party to the contract between NYSTA and TPC (id. at ¶ 5). Additionally, the NYSTA work restrictions provide for a suspension of work for the Veterans Day holiday from 12:00 noon, Thursday, November 10, 2011 to Monday, November 14, 2011 (id. at ¶¶ 4, 7).
Defendants also offer the Affidavit of Fabio Amendola, NYSTA Bridge Maintenance Supervisor 3 since 1989 who was working on November 11, 2011 (Exs. 5, 5A). Amendola stated that the construction project with TPC was suspended on November 11, 2011 for the Veterans Day holiday and that there was no construction work being performed on the bridge at the time of the accident (Ex. 5, ¶ 3). The work vans on the bridge were not construction vehicles; rather those vehicles were part of the daily operations of the bridge regarding patrol and movement of the traffic barriers to address traffic control.
It is clear from defendants' submissions that there is no basis for asserting the proposed claim against the State because the State does not own or operate the bridge and was not a party to the construction contract with TPC. Additionally, while movants cite to TDA's admission in its answer, that, "at some point on November 11, 2011," TDA performed work on the Tappan Zee Bridge" (Reply, Ex. A, ¶ 27), TDA's admission does not concede that it performed any work on November 11, 2011 prior to the 11:40 a.m. accident. In any event, TDA's admission is not binding on NYSTA and is inconsistent with NYSTA's work restrictions (Ex. 5, ¶ 3).
Further, movants have not established that the NYSTA exercised supervisory control over TDA's work (see Comes v New York State Elec.& Gas Corp., 82 NY2d 876, 877 [1993]). General supervisory authority for purposes of overseeing the progress of the work and inspecting the work product is insufficient to impose liability (see Toefer v Long Is. R.R., 308 AD2d 579 [2d Dept 2003], affd 4 NY3d 399 [2005]; Alexandre v City of New York, 300 AD2d 263 [2d Dept 2002]). There has been no showing of an appearance of merit regarding the proposed claim against the NYSTA and the allegations of its negligence being a contributing cause of movants' accident. Indeed, it is just as likely that the barrel which caused the accident came from a civilian traveling with an unsecured pail in the back of his vehicle (see Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938] ["(w)here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury"]).
Accordingly, the Court finds that movants failed to establish the appearance of merit of their proposed claim and that this factor weighed heavily in the Court's determination of whether to grant their application (see Langner v State of New York, 65 AD3d 780 [3d Dept 2009] [late claim application denied even though defendant admitted no prejudice where conclusory allegations were not enough to show a meritorious cause of action]; Matter of Brown v State of New York, 6 AD3d 756 [3d Dept 2004] [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]).
Upon careful consideration, the Court DENIES movants' application for leave to serve and file a late claim (see Morris v Doe, 104 AD3d 921 [2d Dept 2013]).
April 15, 2013
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims