Opinion
# 2011-030-587 Motion No. M-80038
08-10-2011
LAURA STARNELLA v. THE STATE OF NEW YORK and the NEW YORK STATE THRUWAY AUTHORITY
Synopsis
Late claim motion granted with respect to State of New York, though not New York State Thruway Authority. Whether actions of snow plow operator to be judged by ordinary negligence or reckless disregard standard under Vehicle and Traffic Law §1103(b) requires initial factual predicate that actually engaged in highway work; but if statute applies has no preclusive effect to service and filing of late claim given minimal appearance of merit standard. Even if affidavits by those with knowledge had been presented by defendant asserting different version of accident, issues of fact presented, not a basis for denying late claim relief where claimant has submitted a sworn affidavit and exhibits. Case information
UID: 2011-030-587 Claimant(s): LAURA STARNELLA Claimant short name: STARNELLA Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK and the NEW YORK STATE THRUWAY AUTHORITY Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-80038 Cross-motion number(s): Judge: THOMAS H. SCUCCIMARRA LYONS McGOVERN, LLP Claimant's attorney: BY: DESMOND C. B. LYONS & DIANE B. CAVANAUGH HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK Defendant's attorney: BY: VINCENT M. CASCIO, ASSISTANT ATTORNEY GENERAL Third-party defendant's attorney: Signature date: August 10, 2011 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read and considered on claimant's motion for late claim relief:
1 - 4 Notice of Motion, Attorney Affidavit by Desmond C. B. Lyons, Attorney for Claimant and attached exhibits; Affidavit by Laura Starnella, Claimant, and attached exhibits; Memorandum of Law in Support of Claimant's Motion Seeking Permission to File a Late Claim
5 Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney General, and attached exhibits
6, 7 Reply Memorandum of Law in Further Support of Claimant's Motion for Leave to File a Late Claim, Affirmation by Diane B. Cavanaugh, Attorney for Claimant
Laura Starnella alleges in her proposed claim, and in the affidavit submitted in support of the present motion, that on January 21, 2011 she was operating her motor vehicle in the eastbound lane of Route 35, stopped at a red light at its intersection with Cherry Street, in the Town of Somers, when a New York State Department of Transportation [NYSDOT] snow plow vehicle driving at a high rate of speed struck the rear of her car, causing her to suffer physical injuries. [Attorney Affidavit by Desmond C. B. Lyons, Exhibit A; Affidavit by Laura Starnella, ¶ 4]. While stopped behind another car at the intersection [see Affidavit by Laura Starnella, Exhibit A] she saw the snow plow vehicle approaching with its plow raised in her rear view mirror, but had no place to move to avoid the plow. [Affidavit by Laura Starnella, ¶¶ 5, 6]. She asserts that the weather was clear, the road was clear, and the snow plow was not plowing snow, but rather traveling toward her with the plow raised. [Affidavit by Laura Starnella, ¶ 6].
In the State Police Accident report appended to her claim, the trooper records the snowplow operator's claim that "the hook that held up the front plow came undone causing the front plow to fall to the ground" and that he was unable to gain control of the vehicle causing it to go into the right lane striking Ms. Starnella's car, which then struck another car. [Affidavit by Laura Starnella, Exhibit A]. The trooper also notes the condition of the roadway surface as "snow/ice" and the weather as "snow". [Ibid.].
In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein 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 claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. The presence or absence of any particular factor is not dispositive.
Additionally, the motion must be timely. Premised on a date of accrual of January 21, 2011, and a negligence cause of action, the statute of limitations for a like citizen would be three (3) years, thus the motion is timely. Civil Practice Law and Rules §214.
A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 (Ct Cl 1977). Thus claimant need not establish a prima facie case at this point, but rather the appearance of merit.
After rejection of an apparently unverified Notice of Intention to file a Claim [NI], Ms. Starnella indicates she was unable to return to counsel's office to execute a proper verification within the 90-day period from accrual required, due to an ongoing family medical emergency, namely the care of claimant's father during his final illness. This is not an unreasonable excuse. Indeed an excuse is but one of the factors to be considered, and its presence or absence does not conclude whether late claim relief is afforded in any event.
Claimant has a partial alternate remedy in the form of a lawsuit against the driver of the truck, however this appears somewhat nebulous unless the defendant denies that the driver was operating the truck in the course of his employment for example.
The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant's motion. Claimant has appended a police accident report. The passage of time has not been so great that the State's ability to investigate further is impeded to its prejudice, given that an NI, however defective, was actually received on April 18, 2011 by the Attorney General's Office, before the expiration of the 90-day period within which either an NI or a claim should have been served and filed. A second NI was received by the Attorney General's Office on May 6, 2011. [Attorney Affidavit by Desmond C. B. Lyons, ¶ 14, Exhibit D]. Additionally, this motion has been promptly made.
Moreover, no affidavit by someone with knowledge attesting to a failed attempt to investigate has been included in the opposition, to more explicitly establish prejudice. It is therefore unclear how there is any difference between initiating an investigation now rather than the mere few months ago when the time within which to timely serve and file a claim expired. Indeed, some investigation has clearly occurred given the representations in the defendant's opposition to this motion, and the attachment of the routes for the snow plow and an affidavit by a New York State Thruway Authority [NYSTA] employee denying that entity's role. [Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney General, Exhibits A, B].
As noted, claimant need not establish a prima facie case but rather the appearance of merit. Matter of Santana v New York State Thruway Auth., supra. Not just the proposed claim, but the affidavits and other exhibits presented are reviewed to determine whether the Court should exercise its discretion and grant late claim relief. See Mamedova v City Univ. of N. Y.,13 Misc 3d 1211 (A) (Ct Cl 2006).
Here, claimant has provided her own affidavit describing the accident, a proposed claim containing descriptions of what acts constitute the State's alleged negligence, a State Police Accident report that seems to contain the plow truck driver's version of what happened, her own medical reports, all confirming that an accident occurred and that she was injured, and presenting issues of fact as to the merits. In this regard, even if the defendant had presented an affidavit from the plow truck driver containing a different version of what happened, and an affidavit from the State Trooper concerning his observations - rather than counsel's suggestion on information and belief in his affirmation that both the State Trooper accurately recorded the weather and road conditions, and that the driver's version is correct - only issues of fact would be presented. [Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney General, ¶¶ 10, 21].
With regard to any liability on the part of the NYSTA, however, defendant has submitted an affidavit by Andrew M. Nagy, P.E., a Claims Engineer for the NYSTA whose duties include investigation of personal injury claims against the Thruway Authority, and thorough knowledge of the "ownership and maintenance responsibilities of all the highways and bridges under . . . [its] jurisdiction . . ." [Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney General, Exhibit B]. Mr. Nagy writes that based on the accident occurring on Route 35, within 500 feet from Cherry Street in the Town of Somers, NYSTA does not own, operate or control any of the highways in the area of the accident, nor does it own any land at or near the site. [Ibid.]. He also writes that he reviewed NYSTA records, and avows that the snow plow involved in the accident was not owned by NYSTA or operated by one of its employees. [Ibid.]. Notably, in the proposed claim and other pertinent submissions - including reply papers - only the actions of the New York State Department of Transportation - a State agency that is not separately served or named when sued in the Court of Claims - are set forth.
Finally, since the accident involved a collision with a work vehicle operated by the NYSDOT, the provisions of Vehicle and Traffic Law §1103(b) concerning vehicles actually engaged in work on a highway as to the standard of care are implicated. Vehicle and Traffic Law §1103(b) provides in pertinent part that the rules of the roadand statutes governing motorists generally " . . . shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway . . . The foregoing provisions of this subdivision shall not relieve any person, or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others."
Vehicle and Traffic Law, Title VII - Rules of the Road.
See also Vehicle and Traffic Law §1104 exempting police and other authorized emergency vehicles during emergency operations; and Vehicle and Traffic Law §1202(a) regulating stopping, standing and parking from which hazard vehicles - such as street sweepers and snow plows - are exempted under 1103(b) also. "Thus, we conclude that section 1103(b) exempts from the rules of the road all vehicles actually engaged in work on a highway, including the 'hazard vehicles' in the cases before us." Riley v County of Broome; 95 NY2d 455, 465 (2000).
Ordinary negligence will not render a municipality or the State liable under this statute, assuming the NYSDOT agents were actually engaged in work as defined therein and as interpreted in the case law. The threshold issue to determine whether the statute applies is whether the actor is actually engaged in highway work. See Davis v Incorporated Village of Babylon, 13 AD3d 331 (2d Dept 2004); Marvin v Town of Middlesex, 2002 WL 58928, affd, 300 AD2d 1112 (4th Dept 2002); see also Hofmann v Town of Ashford, 60 AD3d 1498 (4th Dept 2009) lv denied 64 AD3d 1200 (4th Dept 2009). If so, the next consideration is whether the complained of conduct was done with reckless disregard for the safety of others. Bliss v State of New York, 95 NY2d 911(2000); Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d 705 (2d Dept 2008). Recklessness ". . . requires evidence that 'the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow' and has done so with conscious indifference to the outcome . . . (citation omitted)." Saarinen v Kerr, 84 NY2d 494, 501 (1994); see also Bliss v State of New York, supra.
At this point in the procedural posture, however, the applicability of the statute 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. See O'Keeffe v State of New York, 40 AD3d 607 (2d Dept 2007).
If the allegations in the claim are accepted as true for the purposes of the motion, claimant has made the requisite showing of merit in order to permit late filing of her claim. Indeed, "[e]ven if the excuse for failing to file a timely claim is 'not compelling,' the denial of a motion to file a late claim may . . . constitute an improvident exercise of discretion where the delay is minimal, the State suffered no prejudice, and there may be issues of fact as to the merits of the claim . . . (citations omitted.)." Jomarron v State of New York, 23 AD3d 527 (2d Dept 2005).
Accordingly, and after careful consideration of all the appropriate factors, the Court hereby exercises its discretion to find that claimant's motion for permission to serve and file a late claim is hereby granted. Claimant is directed to serve a claim similar to the one proposed, naming only the State of New York as a party defendant, and to file such claim with the Clerk, all within forty (40) days from the date-stamped filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the requirements of the Court of Claims Act, and the Uniform Rules for the Court of Claims.
August 10, 2011
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims