Chevalier v State of New York

[*1] Chevalier v State of New York 2005 NY Slip Op 52252(U) [10 Misc 3d 1077(A)] Decided on November 16, 2005 Ct Cl Marin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 16, 2005
Ct Cl

Scott C. Chevalier and PINA CHEVALIER Claimant(s)

against

The State of New York, Defendant(s)



2005-016-068



Claimant's attorney:Rossillo & Licata, P.C.

By: John J. Rossillo, Esq.

Defendant's attorney:Eliot Spitzer, Attorney General

By: Ellen Matowik, Esq., AAG

Alan C. Marin, J.

This is the motion of Scott C. Chevalier and his wife Pina Chevalier for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In the proposed claim, it is alleged that on April 28, 2003, Mr. Chevalier, a motorcyclist, was struck by a vehicle negligently operated by Bert R. Green, Jr., a member of the New York State National Guard, also known as the State militia.

Ordinarily, in determining whether to grant such a motion, the six factors enumerated in the Act would be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. In this case, however, a more fundamental issue must first be addressed whether this Court has jurisdiction over the proposed claim.

Section 8-a of the Act provides that the State waives liability for the torts of members of the organized militia "except while engaged in the active service of the state pursuant to sections five, six or seven of the military law." Section 6 of the Military Law authorizes the Governor in cases of emergency to order members of the National Guard to active duty in State service. The events of September 11, 2001 obviously gave rise to such an emergency, and Mr. Chevalier was called to service pursuant to the Governor's authority, as effectuated by executive order. See 9 NYCRR §5.113 et seq.

Defendant has submitted various documents, including Mr. Green's Orders, demonstrating that he was on active duty pursuant to §6 of the Military Law, from April 15, 2003 through April 28, 2003, i.e., through the date of the accident. See exhibit C to defendant's affirmation in opposition. At the time in question, Mr. Green had been ordered to transport a soldier from Fort Hamilton in Brooklyn to Penn Station in Manhattan.

Claimants argue that such documents contain "discrepancies," e.g., claimants maintain -

- without any basis - - that since the accident occurred two hours after Green's scheduled departure time from Fort Hamilton, discovery is required to see if he had "engage[d] in a frolic." See ¶21 of claimants' reply affirmation. Claimants also argue that "there is no logical reason why Specialist Green would be traveling on Water Street at or near its intersection with Wall Street in his efforts to return to Fort Hamilton in the most direct manner." Id., ¶25. Such arguments are unavailing, and thus the State has not waived its immunity in this case. See, e.g., Nationwide Property Casualty Insurance Company a/s/o Eric C. Lienhop v State of New York, Ct Cl, December 2, 2003 (unreported, motion no. M-66582, Nadel, J.), attached as exhibit B to defendant's affirmation in opposition.

For the foregoing reasons, having reviewed the parties' submissions[FN1] and having heard [*2]oral argument, IT IS ORDERED that motion no. M-69469 be denied.

Appendices: Footnotes

Footnote 1:The following were reviewed: claimants' notice of motion with affirmation and affidavits in support and exhibits A through L; defendant's affirmation in opposition with exhibits A through C; and claimants' reply affirmation with exhibits A through D. In addition, oral argument was had in this matter.