Opinion
# 2011-029-056 Claim No. 120204 Motion No. M-80341 Cross-Motion No. CM-80347
01-05-2012
Synopsis
Claim seeking damages for arrest arising from negligence of Town Court employees in mistakenly reporting that claimant had failed to appear for traffic summons was dismissed for late filing (more than 90 days after arrest) but cross-motion for permission to late file was granted. Possible application of the expanding doctrine of governmental immunity does not militate against late filing relief. Case information
UID: 2011-029-056 Claimant(s): ANTHONY MANUEL NUNEZ Claimant short name: NUNEZ Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120204 Motion number(s): M-80341 Cross-motion number(s): CM-80347 Judge: STEPHEN J. MIGNANO MARTINO & WEISS Claimant's attorney: By: Douglas J. Martino, Esq. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: By: Dian Kerr McCullough, Assistant Attorney General Third-party defendant's attorney: Signature date: January 5, 2012 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
According to the allegations of the Claim, filed on August 8, 2011, claimant was arrested and prosecuted for aggravated unlicensed operation of a motor vehicle as the result of the negligence of employees of the defendant's Unified Court System at the Pelham Town Court in erroneously notifying the Department of Motor Vehicles that claimant had failed to appear to respond to traffic citations.
Defendant, in a pre-answer motion, moves to dismiss the claim for lack of jurisdiction, alleging that the claim was served and filed more than 90 days following its accrual, as required by section 10(3) of the Court of Claims Act. Claimant opposes the motion and, in a cross-motion, requests permission to file a late claim pursuant to section 10(6) should the court find that the filed claim is jurisdictionally infirm.
The claim alleges that "[b]eginning on October 25, 2010 and continuing until April 15, 2011 . . . [the employees at the Pelham Town Court] failed and continued to fail to properly process the above moving violations, summonses and record in its files that the claimant had paid said tickets, resulting in his arrest on April 13, 2011" (par. 3). Defendant notes that the claim was served on defendant on July 18, 2011 and filed with the court on August 8, 2011, both dates more than 90 days after April 15, 2011, the last date mentioned in the claim. Although claimant argues that the claim did not accrue until the charges against claimant were dismissed on May 25, 2011, in actuality the claim accrued when claimant was arrested on April 13, thus supplying the fourth of the four required elements of a negligence cause of action; duty, breach of duty, proximate causation and damages. Until his arrest, there were no damages. Subsequent to the arrest, the continuing accrual of damages does not operate to extend the accrual date of the claim as contended by claimant (see Johnson v State of New York, 131 Misc 2d 630).
"A claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable" (Flushing Natl. Bank v State of New York, 210 AD2d 294, lv denied 86 NY2d 706). See also Johnson v State of New York, 131 Misc 2d 630; Penske Truck Leasing Co. v State of New York, Ct Cl, Patti, J., UID No. 2002-013-017, May 24, 2002).
As the claim was served and filed more than 90 days after accrual, defendant's motion to dismiss for lack of jurisdiction must be, and hereby is, granted and Claim No. 120204 is dismissed for lack of jurisdiction.
As to claimant's cross-motion for permission to late file, Court of Claims Act section 10(6) grants the court the discretion to allow the filing of a late claim upon consideration of all relevant factors, including those set forth in the statute: whether claimant's delay was excusable, whether defendant had timely notice of and the opportunity to investigate the facts constituting the claim, whether defendant would suffer substantial prejudice should permission to late file be granted, whether the proposed claim appears meritorious and whether claimant has an alternate remedy. The statute also imposes two preconditions on the court's power to grant late filing relief: the motion must be made prior to the expiration of the statute of limitations underlying the cause of action (not an issue here) and "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany [the motion]."
Opposing claimant's application, defendant initially argues that the court is without power to grant the motion because claimant has "failed to annex a proposed claim to [his] moving papers" (Affirmation in Opposition, par. 4). Defendant's implicit contention is that the filed claim, dismissal of which over claimant's objection is a necessary predicate to consideration of claimant's alternative request that the court allow claimant to late file, cannot serve as the "proposed claim" within the intendment of the statute unless an additional discrete copy of the document is appended to claimant's cross-motion. The court rejects this contention and specifically holds that where defendant moves to dismiss a filed claim for lack of jurisdiction and the claimant cross-moves for permission to late file the claim under circumstances where it is apparent that the claim for which permission is being sought is in fact the filed claim, the copy of the claim previously served and filed fulfills the statutory requirement to submit a proposed claim. Accepting defendant's position - and thereby denying the motion and engendering a further motion, identical to this one with the exception of the word "proposed" typed onto an additional copy of the claim - is not required by statute or any controlling case law and would serve no purpose whatsoever except to elevate form over substance to a degree not heretofore seen in Court of Claims jurisprudence.
Turning to the substance of the application, the court agrees with defendant that claimant has not presented any facts from which the court could conclude that his delay in properly and timely interposing a claim was excusable within the meaning of the statute. Nevertheless, this is but one factor to consider (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
Claimant attaches an April 15, 2001 letter from Mike Miller on Town of Pelham Justice Court letterhead, stating:
"This is to show that the suspension on Anthony Nunez license has been lifted. These tickets were paid months ago and NEVER should have been suspended."(Exhibit A, emphasis in original).
Defendant has not submitted any papers from anyone with knowledge of the situation and the court thus treats claimant's essential allegation - that his license was suspended due to negligence of a State employee at the Pelham Justice Court - as true for the purpose of this motion.
Although defendant states, without explanation or elaboration, that due to claimant's delay it has not had the time or opportunity to investigate the facts and would therefore suffer substantial prejudice should the motion be granted, the papers before the court indicate that the State personnel at the justice court were aware of the essential facts underlying the claim within two days after its accrual and they in fact investigated at that time. There is no indication that defendant would suffer any prejudice whatsoever from claimant's delay.
As to the apparent merit of the proposed claim, defendant argues only that claimant did not attach a copy of the order dismissing the criminal charges against him (irrelevant, since "[f]acts stated in a motion for leave to file a late claim . . . are deemed true for purpose of [the] motion, when not denied or contradicted in opposing affidavits" (Sessa v State of New York, 88 Misc 2d 454, 458 [1976], affd 63 AD2d 334 [1978], affd 47 NY2d 976 [1979]; see also Cole v State of New York, 64 AD2d 1023, 1024 [1978]); and that a "general allegation of negligence" is not sufficient, an argument that seems directed at some other case since claimant's allegations here are quite specific, the antithesis of a general allegation of negligence.
Not raised by defendant, or addressed by either party, is what effect the evolution of the law of governmental immunity set in motion by the decision in McLean v City of New York (12 NY3d 194) will have on the potential liability of the State for ministerial negligence of the type alleged here. Nevertheless, as Judge Collins noted in Pearson v State of New York (Ct Cl, Collins, J., UID No. 2010-015-107), while earlier cases have found that governmental immunity does not shield the State from liability for ministerial negligence, and "it remains to be seen whether or not the special duty requirements set forth in McLean would change the result in cases of this type, for purposes of a late claim application the movant has sufficiently established the potential merit of her claim." The court finds that claimant has established that his claim is not groundless, frivolous or legally defective and, at this point in the litigation when his allegations are assumed to be true, there is reasonable cause to believe that he has a sustainable cause of action.
Accordingly, five of the six statutory factors weighing in favor of the application, the court finds that claimant's cross-motion should be, and hereby is, granted. Claimant may serve and file his claim, in accordance with the service and filing requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, including payment of a new filing fee, within 30 days of the filing date of this decision and order.
January 5, 2012
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers considered:
Notice of Motion, Affirmation and Exhibits
Notice of Cross-Motion, Affirmation and Exhibit
Affirmation in Opposition to Cross-Motion