Opinion
01-05-2022
In the Matter of the Application of Paul SCHOENTUBE, Claimant, v. The STATE of New York, Defendant.
For Claimant: Donnelly Stehn, LLP, By: Joseph P. Donnelly, Esq. For Defendant: HON. LETITIA JAMES, ATTORNEY GENERAL, By: John L. Belford, IV, Assistant Attorney General
For Claimant: Donnelly Stehn, LLP, By: Joseph P. Donnelly, Esq.
For Defendant: HON. LETITIA JAMES, ATTORNEY GENERAL, By: John L. Belford, IV, Assistant Attorney General
Maureen Liccione, J.
Movant moves for permission to file and serve a late claim asserting a cause of action for negligence arising from a motor vehicle accident that occurred on November 3, 2020 at the intersection of County Access Road and Hauppauge Spur (a/k/a Raoul Wallenberg Drive). Defendant opposes the motion.
The proposed claim states that on November 3, 2020, movant was a passenger in a vehicle driving westbound on County Access Road when the vehicle that movant was riding in collided with a vehicle traveling northbound on Hauppauge Spur. The proposed claim alleges that the vehicle in which movant was a passenger failed to stop at the intersection due to a missing, damaged, and/or defective stop sign that was lying on the ground at the intersection.
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York , 299 AD2d 675 [3d Dept 2002] ). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors ( Court of Claims Act § 10 [6] ). These factors are: (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 state was substantially prejudiced; (5) whether the movant has any other available remedy; and (6) whether the claim appears to be meritorious ( Court of Claims Act § 10 [6] ). The presence or absence of any one of said factors is not dispositive ( Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen's and Firemen's Retirement Sys. , 55 NY2d 979 [1982] ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the movant's application (Savino v State of New York , 199 AD2d 254 [2d Dept 1993] ; Prusack v State of New York , 117 AD2d 729 [2d Dept 1986] ).
Before addressing the six statutory factors, the Court must determine whether movant's cause of action is timely under CPLR Article 2 ( Court of Claims Act § 10 [6] ). Movant's cause of action accrued on November 3, 2020 and the three year statute of limitations applicable to actions for personal injury applies ( CPLR 214 ). As movant filed the instant motion on September 7, 2021, it is timely under CPLR 214.
Turning then to the first factor in the Court's late claim analysis, movant argues that he sustained serious injuries as a result of the accident, including a traumatic brain injury. He was transferred from the accident scene to the hospital by ambulance where he was admitted for 10 days and treated in the Intensive Care Unit. In the weeks and months following this injury, movant experienced the effects of his brain injury, including constant headaches, intracranial pressure, insomnia, and persistent neck, back and shoulder pain. His head injury continues to affect his mental condition to this day. Moreover, movant states that he was not aware of the significance of the missing stop sign until he retained counsel and was informed of statements in the police accident report regarding the missing stop sign. At that point more than 90 days had elapsed since the accident.
Physical incapacitation is an acceptable excuse for failing to timely file a claim ( Wolf v State of New York , 140 AD2d 692, 693 [2d Dept 1988] ). However, such a finding must be supported by relevant medical evidence (see Cabral v State of New York , 149 AD2d 453, 453 [2d Dept 1989] ). The medical records submitted as Exhibit G to movant's affirmation in support of the motion document movant's medical treatment during the 10 days immediately following the accident. However, the medical records do not include a physician's affidavit establishing that movant's injuries prevented him from timely filing a claim (see Conroy v State of New York , 194 Misc 2d 71, 73 [Ct Cl 2002] [physician's affidavit established that movant was incapacitated and unable to timely file a claim]). Movant's own statements regarding his condition are insufficient to establish a reasonable excuse for the delay (Magee v State of New York , UID No. 2007-039-020 [Ct Cl, Ferreira, J., June 14, 2007]).
Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.
Movant also alleges that he was not aware of the significance of the missing stop sign until he retained counsel more than 90 days after the accident. This excuse is also insufficient as a delay in discovering the facts constituting the claim does not excuse the failure to timely file a claim (see Kainz v State of New York , UID No. 2019-053-516 [Ct Cl, Sampson, J., May 23, 2019]; McCarthy v State of New York , UID No. 2019-018-025 [Ct Cl, Fitzpatrick, J., Apr. 16, 2019]; Stirnweiss v State of New York , UID No. 2018-050-064 [Ct Cl, Lynch, J., Dec. 5, 2018]). Therefore, this factor does not weigh in movant's favor.
The next three factors—defendant's notice of the issues, opportunity to investigate, and prejudice—are interrelated and therefore frequently considered together. Here, movant argues that these three factors weigh in movant's favor because the driver of the vehicle that struck the vehicle in which movant was a passenger on the day of the accident timely served and filed a claim within 90 days. Movant alleges that defendant has already served an answer to the driver's claim and has begun the discovery process. The claim filed by the driver is premised on the same acts of negligence alleged in movant's proposed claim—the State's alleged negligence in failing to remedy the missing and/or defective stop sign at the intersection. Given the timely filing of the driver's claim, which involves the exact same set of circumstances as those alleged in the proposed claim, the Court finds that these three factors weigh in movant's favor (see Olender v State of New York , 194 Misc 583, 584 [Ct Cl 1949] [factors of notice of the issues, opportunity to investigate, and prejudice weigh in movant's favor where a claim arising from the same accident was timely filed and served]).
As to alternative remedies, movant states that personal injury suits were filed in Suffolk County Supreme Court against both the driver and the owner of the vehicle in which movant was a passenger and the driver of the vehicle that struck the vehicle in which movant was a passenger. However, movant avers that the insurance companies for both the driver and the owner of the vehicle in which he was a passenger have disclaimed coverage and both the driver and the owner have no assets. Thus, it is unlikely that movant will receive adequate compensation. Moreover, movant cannot pursue a claim against the State in Supreme Court. Because movant is unable to sue the State in Supreme Court, any recovery there "is not necessarily a wholly satisfactory one" ( Woodley v State of New York , 88 Misc 2d 889, 893 [Ct Cl 1976] ). Given the limitations to movant's possible recovery in Supreme Court, the Court finds that this factor weighs in movant's favor.
Turning then to the final factor, in order to establish a meritorious cause of action, claimant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" ( Rizzo v State of New York , 2 Misc 3d 829, 834 [Ct Cl 2003] ; see Court of Claims Act § 10 [6] ; Matter of Santana v New York State Thruway Auth. , 92 Misc 2d 1, 11 [Ct Cl 1977] ). "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, and should not, require [claimant] to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [claimant] to file a late claim" (Williams v State of New York , UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth. , 92 Misc 2d at 11-12 ).
Defendant argues that movant has failed to establish the appearance of merit of the proposed claim because he failed to submit an expert affidavit, which is necessary to establish the merit of a late claim alleging negligent highway design (see Klingler v State of New York , 213 AD2d 378 [2d Dept 1995] ; Nyberg v State of New York , 154 Misc 2d 199, 202 [Ct Cl 1992] ).
The State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition ( Friedman v State of New York , 67 NY2d 271 [1986] ; Weiss v Fote , 7 NY2d 579 [1960] ). The State is not, however, an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable ( Tomassi v Town of Union , 46 NY2d 91 [1978] ). The movant has the burden to show that the State either created a dangerous condition or had actual or constructive notice of the presence of a dangerous condition and then failed to take reasonable measures to correct it ( Brooks v New York State Thruway Auth. , 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980] ). In order to constitute constructive notice, it has been held that a defect must be visible, apparent and exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it ( Gordon v American Museum of Natural History , 67 NY2d 836, 837 [1986] ). Finally, the State cannot be held liable "unless its ascribed negligence is a proximate cause of the accident" ( Ring v State of New York , 270 AD2d 788, 789 [3d Dept 2000] ).
Expert affidavits are required where "the alleged wrongdoing of the State cannot be assessed on the basis of common everyday experience and knowledge" (Aronson v State of New York , UID No. 2002-028-075 [Ct Cl, Sise, J., Dec. 27, 2002]). However, "[u]nlike highway design determinations, routine highway maintenance does not require the exercise of expert judgment ..." (Stickelmyer v State of New York , UID No. 2020-015-058 [Ct Cl, Collins, J., May 28, 2020]). The proposed claim alleges that the State failed "to maintain, observe, inspect, repair, and/or replace the missing, damaged, and/or defective stop sign which was laying on the ground at the [accident location]" (Proposed Claim ¶ 5). Here, an expert affidavit is not required to establish whether: (1) the State had a duty to maintain the intersection where the accident occurred; (2) either created or had notice of the dangerous condition of the missing and/or defective stop sign; (3) failed to remedy the dangerous condition; and (4) the dangerous condition proximately caused the accident in which movant sustained injuries (see Derdiarian v Felix Contr . Corp., 51 NY2d 308, 315 [1980] ). In sum, a layperson could determine that a missing stop sign at the intersection of two roadways could constitute negligence. Therefore, the Court finds that an expert affidavit is not required to establish the appearance of merit of the proposed claim and the allegations, taken as true, establish the appearance of merit of the proposed claim.
Defendant also argues that movant has not definitively established through sworn affidavits that the stop sign was missing at the time of the accident. The Court notes that, on a late claim application, movant need not definitively establish the merit of the claim, or overcome all legal objections to the claim (Matter of Santana v New York State Thruway Auth. , supra at 11-12). Moreover, movant submitted photographs taken immediately after the accident that depict the missing stop sign, in addition to a police accident report that states that the officer observed a stop sign laying on the ground (Affirmation in Support, Exhibits B, C, D). Therefore, the Court finds that movant has established the appearance of merit of the proposed claim.
Therefore, upon consideration of the six factors enumerated in Court of Claims Act § 10 (6), it is hereby
ORDERED that movant's motion for late claim relief (M-97171) is GRANTED . Movant is directed to file the proposed claim attached as Exhibit A to movant's affirmation in support of the motion within sixty (60) days of the date that this Decision and Order is filed by the Clerk of the Court. In serving and filing the claim, movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
Papers Considered:
1. Notice of Motion, dated August 24, 2021; and Affirmation in Support. affirmed by Joseph P. Donnelly, Esq. on August 24, 2021, with Exhibits A through G annexed thereto.
2. Affirmation in Opposition, affirmed by John L. Belford, IV, AAG on September 28, 2021, with Exhibit A annexed thereto.
3. Reply Affirmation, affirmed by Joseph P. Donnelly, Esq. on October 5, 2021.