Opinion
# 2013-049-032 Motion No. M-83147
06-25-2013
POWERHOUSE AUTO v. THE STATE OF NEW YORK,
Synopsis
The Court granted claimants' late claim application arising out of a motor vehicle collision with a State-owned vehicle.
Case information
+-----------------------------------------------------------------------------+ ¦UID: ¦2013-049-032 ¦ +-----------------------------+-----------------------------------------------¦ ¦Claimant(s): ¦POWERHOUSE AUTO LEASING CORP. and GEORGE LEMUS ¦ +-----------------------------+-----------------------------------------------¦ ¦Claimant short name: ¦POWERHOUSE AUTO ¦ +-----------------------------+-----------------------------------------------¦ ¦Footnote (claimant name) : ¦ ¦ +-----------------------------+-----------------------------------------------¦ ¦Defendant(s): ¦THE STATE OF NEW YORK ¦ +-----------------------------+-----------------------------------------------¦ ¦Footnote (defendant name) : ¦ ¦ +-----------------------------+-----------------------------------------------¦ ¦Third-party claimant(s): ¦ ¦ +-----------------------------+-----------------------------------------------¦ ¦Third-party defendant(s): ¦ ¦ +-----------------------------+-----------------------------------------------¦ ¦Claim number(s): ¦None ¦ +-----------------------------+-----------------------------------------------¦ ¦Motion number(s): ¦M-83147 ¦ +-----------------------------+-----------------------------------------------¦ ¦Cross-motion number(s): ¦ ¦ +-----------------------------+-----------------------------------------------¦ ¦Judge: ¦DAVID A. WEINSTEIN ¦ +-----------------------------+-----------------------------------------------¦ ¦ ¦Eppinger, Reingold & Korder ¦ ¦Claimant's attorney: ¦ ¦ ¦ ¦By: Mitchell L. Korder, Esq ¦ +-----------------------------+-----------------------------------------------¦ ¦ ¦Eric T. Schneiderman, New York State Attorney ¦ ¦Defendant's attorney: ¦General ¦ ¦ ¦ ¦ ¦ ¦By: Daniel Chu, Assistant Attorney General ¦ +-----------------------------+-----------------------------------------------¦ ¦Third-party defendant's ¦ ¦ ¦attorney: ¦ ¦ +-----------------------------+-----------------------------------------------¦ ¦Signature date: ¦June 25, 2013 ¦ +-----------------------------+-----------------------------------------------¦ ¦City: ¦Albany ¦ +-----------------------------+-----------------------------------------------¦ ¦Comments: ¦ ¦ +-----------------------------+-----------------------------------------------¦ ¦Official citation: ¦ ¦ +-----------------------------+-----------------------------------------------¦ ¦Appellate results: ¦ ¦ +-----------------------------+-----------------------------------------------¦ ¦See also (multicaptioned ¦ ¦ ¦case) ¦ ¦ +-----------------------------------------------------------------------------+
Decision
Claimants Powerhouse Auto Leasing Corp. ("Powerhouse") and George Lemus move this Court for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6). Appended to the application is a document entitled "Notice of Intention to File a Claim," in which it is alleged that on December 1, 2012, a yellow taxicab owned by claimants was damaged when it was "negligently struck" by a vehicle owned, controlled and operated the State of New York and Kings County Hospital Center. Claimants seek an award in the amount of $19,996.00 for property damages sustained by the vehicle. The application is also supported by an affirmation of counsel; the affidavit of the taxi cab driver Jean Charles Wanted (the "Wanted affidavit"); and a number of exhibits including a copy of a New York State Department of Motor Vehicles insurance certificate issued to Lemus for a 2012 Ford taxicab, a police accident report dated December 1, 2012, correspondence between New York State claims administrator Cool Risk Management Service ("Cool Risk") and Lemus or his attorney, and a photograph of the damaged taxicab. While not stated in the proposed claim, it is apparent from the supporting papers that defendant's vehicle was an ambulance.
The Affirmation in Support of this application alternately refers to "claimant" (in the singular) and "claimants" (in the plural), but never elucidates the relationship between Powerhouse and Lemus, which (if either) had legal title to the damaged taxi cab, or what other legal basis (besides ownership) either claimant has to recover damages for the harm done to the vehicle. Defendant does not, however, raise this defect in its opposition papers.
Claimants' papers state that this motion is one for permission to file a late notice of claim. No such relief is available in the Court of Claims, however. Since the mis-labeling of the motion has no impact on its merits, and causes no prejudice to the defendant, the Court will treat this as a motion to file a late claim made pursuant to Court of Claims Act § 10(6). Similarly, although the Affirmation in Support appends a "proposed Notice of Claim," rather than a "claim," for all intents and purposes the submission meets the statutory requirement that a proposed claim be appended to a late claim motion, and it will be treated as such for purposes of the present application.
The Police Accident Report states that the vehicle is registered to University Hospital of Brooklyn.
The State opposes the application, arguing that claimants have failed to show a valid excuse for the late filing, that defendant did not have notice of the accident, and that the proposed claim lacks the appearance of merit.
Claimants' late claim application was filed within the relevant statute of limitations, so that the Court has jurisdiction to grant relief under section 10(6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those factors are whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the claimants have any other available remedy. These factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling (id.).
With respect to the existence of a valid excuse for the failure to timely serve and file a claim, claimants appear to assert that by making a claim with Cool Risk, they had taken adequate steps to seek recompense for the accident, so as to justify missing the statutory deadline for filing in this Court (see Aff. in Supp. ¶ 7 [claimant's counsel, "upon receipt of the correspondence from Cool Risk Management, assumed that the process of claim was already underway"]). This is clearly not the case, as seeking recovery of insurance proceeds does not equate to commencement of a suit against the State in accordance with the Court of Claims Act. In essence, then, claimants assert ignorance of the law as their reason for late filing, and such excuse is not valid for purposes of section 10(6) relief (see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]). This factor, therefore, weighs against granting claimants' application.
Whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this application are closely related and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimants argue that the State was put on notice of the accident by their correspondence with Cool Risk. Defendant asserts that notice to Cool Risk, an independent contractor, does not constitute notice to the State (Aff. in Opp. ¶¶ 7-8). Even if that assertion is correct, however, in this case the State's own vehicle, operated by one of its employees, was involved in the collision at issue. As a result, the State was made aware of the accident, and had an adequate opportunity to investigate the incident (see Wolf v State of New York, 140 AD2d 692, 693 [2d Dept 1988] [determination that State had notice of accident "buttressed by the fact that an employee of the State was not only present at the accident scene but was involved in the collision itself"]). Indeed, the ambulance driver completed an "Employee Statement Report" on the day of the accident (Aff in Opp, Ex. C), giving defendant ample notice of the collision. In any event, defendant does not argue that it was prejudiced by the brief delay between the running of the 90-day statutory time period for filing and serving a claim, and the making of this application. These factors therefore weigh in favor of granting the application.
The statutory 90-day period ran on March 1, 2013, and the present motion was filed on March 15, 2013.
As to the appearance of merit, that factor is assessed under the twofold test set forth in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To meet this test: (1) the proposed claim "must not be patently groundless, frivolous, or legally defective," and (2) 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. at 11). In applying this standard, "the court looks at all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of 'apparent merit' and is not confined to the text of the proposed claim itself" (Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A], 2006 NY Slip Op 51775[U] [Ct Cl 2006]).
Here, claimants augment the brief account of the accident set forth in their "notice of claim," with the Wanted affidavit (Aff. in Supp., Ex. 4). In that document, Wanted avers that on December 1, 2012, at about 2:00 p.m., he was driving the taxicab southbound on Adams Street. He proceeded through the intersection at Tillary Street, with a green light in his favor, when he was struck by an ambulance that was speeding. According to Wanted, he did not hear any sirens or see flashing lights warning that the ambulance was coming though the intersection against a red light.
Defendant advances a number of arguments to suggest that claimants have failed to meet their burden as to the appearance of merit. In particular, defendant places much import on statements made by the ambulance driver in the police report and the "Employee Statement Report," in which he indicates that the ambulance's lights and sirens were on when it drove through the accident intersection (Aff. in Opp. ¶ 10). But to the extent defendant raises "issues of fact as to the merits of the claim," that does not vitiate the appearance of merit under section 10 (6) (see Jomarron v State of New York, 23 AD3d 527, 527 [2d Dept 2005] [denial of late claim motion "improvident" when there "may be issues of fact as to the merits of the claim"]; see also Marcus v State of New York, 172 AD2d 724, 725 [2d Dept 1991] ["although a sharp but undeveloped factual issue exists . . . there appears to be merit to the claim within the meaning of Court of Claims Act § 10 (6)"]).
Defendant also contends that under Vehicle and Traffic Law ("VTL") § 1104, the conduct of an emergency vehicle (such as the ambulance involved in the crash here) is only actionable if claimants prove the driver acted with "reckless disregard," and in this case claimants allege "only negligence" (Aff. in Opp. ¶ 11). This argument is problematic on two grounds.
First, the appropriate standard applicable to an accident involving an emergency vehicle will depend on the specific conduct at issue. In Kabir v County of Monroe (16 NY3d 217 [2011]), the Court of Appeals limited the protection granted defendants by section 1104, holding that the reckless disregard standard "only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b),"
VTL § 1104(b) provides that
"A driver in an authorized emergency vehicle may:
1. Stop, stand or park irrespective of the provision of this title
2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation
3. Exceed the maximum speed limits so long as he does not endanger life or property
4. Disregard regulations governing directions of movement or turning in specified directions."
while other conduct is assessed under the ordinary negligence standard (id. at 230-231). The conduct delineated in section 1104(b) includes "proceed[ing] past a steady red signal, a flashing red signal or a stop sign," but only if the vehicle has "slow[ed] down as may be necessary for safe operation" (cf. Spencer v Astralease Associated, Inc., 89 AD3d 530, 531 [1st Dept 2011] [reckless disregard standard applied because when ambulance ran red light, siren and emergency lights had been activated, and ambulance slowed rate of speed]). Whether this is what occurred here is not established by the record on this motion, and can be answered only after further factual development.
Second, even if a recklessness standard were clearly applicable in this case, I cannot find at this early stage of the proceeding that the allegations made in claimants' submission (that the ambulance drove into a car standing in an intersection without lights or sirens) cannot, as a matter of law, entail recklessness. Given the above-cited restrictions on the Court engaging in fact finding on a late claim motion, defendant cannot prevail on its argument that the conduct described in the proposed claim cannot evince reckless behavior (see Davila v State of New York, UID No. 2011-029-059 [Ct Cl, Mignano, J., Jan. 5, 2012] [granting late claim motion despite State's argument that recklessness standard applies; "[w]hether or not the operative facts will justify a finding that the heightened standard of care applies can only be determined after a full explication of [the] facts and is in fact totally irrelevant to the court's conclusion that claimant, at this point, has demonstrated the appearance of merit within the meaning of the statute"]; Starnella v State of New York, UID No. 2011-030-587 [Ct Cl, Scuccimarra, J., Aug. 10, 2011] [application of recklessness standard "should not have the preclusive effect of preventing late filing of a claim since only the minimal burden of establishing the appearance of merit need be shown, there is no prejudice, and there are issues of fact as to the merits in any event"]). Claimants have, therefore, met the "appearance of merit" standard, and this factor weighs in their favor.
As to an alternate remedy, defendant makes no argument regarding this factor, and therefore it is also presumed to weigh in claimants' favor (see Mamedova, 13 Misc 3d 1211[A] at *2 [defendant's failure to address certain § 10(6) factors "entitles the court to presume that they weigh in favor of granting the motion"]; Fine v State of New York, 10 Misc 3d 1075[A] 2005 NY Slip Op 52240[U] [Ct Cl 2005] [late claim factors not opposed by the defendant are "presumed to weigh in Claimant's favor"]).
In view of the foregoing, having reviewed the submissions and considered all of the factors enumerated in Court of Claims Act § 10(6), I find that the balance of relevant factors weighs in claimants' favor, and therefore grant claimants' motion. I note, however, that while the totality of the claimants' filings suffices to show "an appearance of merit," many of the alleged facts are not set forth in the proferred claim, and had to be gleaned from the supporting papers generally, and the Wanted affidavit in particular. Accordingly, the served and filed claim should include the specifics of the accident as set forth in the supporting affidavit Jean Charles Wanted. Further, while the claim alleges that "claimants" suffered injury as a result of the accident, that allegation turns ultimately on whether either or both actually had an ownership interest in the damaged car, or some other ground on which they may claim recovery (see supra n1). The filed claim must make clear the nature of such interest held by each claimant.
In the event either claimant lacks an independent basis to seek recovery for the damages at issue, the filed claim must omit that claimant from the action.
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Therefore, IT IS ORDERED that motion no. M-83147 be granted, and that within thirty (30) days of the filing of this Decision and Order, claimants shall serve and file a properly verified claim, entitling it Claim, naming the State of New York as the only defendant, and ensuring that it complies with the pleading requirements of Court of Claims Act § 11(b) and with this opinion. In serving and filing the claim, claimants shall comply with all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a.
June 25, 2013
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimants' Notice of Motion, Affirmation, and annexed exhibits.
2. Defendant's Affirmation in Opposition, and annexed exhibits.