Hyatt v State of New York

[*1] Hyatt v State of New York 2018 NY Slip Op 51983(U) Decided on October 23, 2018 Court Of Claims Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2018
Court of Claims

Joseph Hyatt Jr., Claimant,

against

The State of New York, Defendant.



M-92676



Claimant's attorney:

SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO P.C.

By: Marie Ng, Esq.

Defendant's attorney:

HON. BARBARA D. UNDERWOOD

Attorney General for the State of New York

By: J. Gardner Ryan, Assistant Attorney General
Walter Rivera, J.

Movant seeks leave to serve and file a late claim arising out of a motor vehicle accident that occurred on November 9, 2016 at approximately 3:50 p.m. on New York Route 9 in the Town of Fishkill. In the area of the accident Route 9 is a two-lane highway with a painted center line dividing the northbound lane of traffic from the southbound lane of traffic. Movant, then 19-years old, was a rear-seat passenger in an automobile operated by 17-year-old Dominic John Chirico. Chirico was driving southbound when he attempted to pass the vehicle in front of him by crossing over the center dividing line and into the northbound lane of traffic. Chirico collided with a vehicle traveling northbound in the northbound lane of traffic. Movant was severely injured in the impact.

A Notice of Intention to File a Claim was timely served upon the Attorney General's office on January 19, 2017 (Movant's Ex. C). Movant's counsel at that time was Daniel A. Seymour, Esq. of Bank, Sheer, Seymour and Hashmall. The Notice of Intention to File a Claim described the location of the accident as "Route 9 in the Town of Fishkill, New York, at or about the area of ½ mile north of South [Rapalje] Road [emphasis added]" (id. at ¶ 2). A MV-104A Police Accident Report prepared on the date of the accident by New York State Trooper Kristin A. Brucale was attached to the Notice of Intention to File a Claim. The trooper described the accident location as .50 miles north of South Rapalje Road at mile marker 1009 [emphasis added] (Movant's Ex. C).

On July 16, 2018, movant's subsequent attorney, Marie Ng, Esq. of Sullivan Papain Block McGrath & Cannavo, P.C., and Richard F. Newhouse, a professional engineer who had been consulted by counsel, went to the location of the accident as described in the MV-104A. At that time, it became apparent to counsel that the accident location as set forth in the MV-104A and the Notice of Intention to File a Claim prepared by movant's prior attorney was incorrect. Accordingly, on July 25, 2018, movant's counsel served defendant with an Amended Notice of Intention to File a Claim indicating that the accident location was incorrect in the attached MV-104A Police Accident Report and that the correct location of the accident is on Route 9 "0.8 miles south of South [Rapalje] Road in the Town of Fishkill [emphasis added]" and the closest mile marker is "1019 [emphasis added]" (Movant's Ex. B).

On August 6, 2018, movant filed this late claim application seeking leave to serve and [*2]file a late claim alleging that the accident occurred, not at the location set forth in the initial Notice of Intention to File a Claim that was timely served on November 19, 2017, but rather at the location as described in the Amended Notice of Intention to File a Claim served upon defendant on July 25, 2018 (Movant's Ex. B, ¶ 2; Movant's Ex. A, ¶ 2).[FN1]

Analysis

Preliminarily, it is noted that there is no provision in the Court of Claims Act for the service of an Amended Notice of Intention to File a Claim and the purported Amended Notice of Intention to File a Claim was not timely served within the 90 days after the accrual of the proposed claim as required by Court of Claims Act § 10. Accordingly, movant's Amended Notice of Intention to File a Claim is a nullity and movant's initial Notice of Intention to File a Claim, which was timely served, is jurisdictionally defective because it fails to accurately set forth the location of the accident (see Court of Claims Act § 11 [b]).

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).

While no single factor is determinative, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal (see Barnes v State of New York, 158 AD3d 961 [3d Dept 2018]; Ortiz v State of New York, 78 AD3d 1314 [3d Dept 2010]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is further noted that, unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977] ). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]).

The Court has reviewed the proposed claim and finds that the conclusory allegations contained therein are of questionable merit (see Langner v State of New York, 65 AD3d 780 [3d Dept 2009] [late claim application denied even though defendant admitted no prejudice where [*3]conclusory allegations were not enough to show a meritorious cause of action]; Matter of Brown v State of New York, 6 AD3d 756 [3d Dept 2004] [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]). Merely because the accident occurred on a State roadway, without more, is not sufficient to establish the appearance of merit of movant's proposed claim. Movant's allegations of negligence are conclusory and self-serving in that they assert, among other things, that the design of the roadway without a median or guiderail enabled the 17-year-old driver to cross over the double yellow line and proceed into oncoming traffic.

Additionally, movant does not submit his own affidavit in support of his application as counsel affirms that movant "does not remember the details of the accident" (Movant's Attorney's Affirmation, ¶ 33). Movant's counsel does not indicate whether there is a medical reason for movant's failed memory. Defense counsel also notes that movant's medical records submitted with his late claim application indicate that movant's toxicology report following the accident showed that he tested positive for cocaine, benzodiazepines, cannabis and opiates (Movant's Ex. H).

The "Affidavit of Merit" submitted with movant's application is sworn to by movant's father and states that he is familiar with the "roadway area and the vehicles travel at high speeds given the circumstances" (Movant's Ex. F, ¶ 9). He further states he believes his son has a meritorious claim against the State (id. at 10). The Affidavit of Merit is conclusory and self-serving and does not set forth any specific facts or allegations as to how the State was negligent or how any claimed negligence was a contributing cause of the accident. Moreover, speed was not shown to be a contributing cause of the accident insofar as an appearance of merit is concerned.

Movant also submits the affidavit of the professional engineer, Richard F. Newhouse, to support movant's showing of an appearance of merit (Movant's Ex. G). Newhouse opined that a review of the accident history provided to him "required that the State perform a study to ascertain whether traffic calming measures should be taken under these circumstances, including: lowering the speed limit; increasing enforcement; consideration of a median barrier, modification to roadway geometrics, etc. and that a Claim against the State of New York for highway design, construction, operation and maintenance appears meritorious" (Ex. G, ¶ 10). Newhouse explicitly stated, "[a]t this stage my investigation is not completed" (id. at 11) and he reserved the right to amend and modify his opinions after he reviews information he had yet to obtain from the State regarding traffic safety standards, highway improvements and other materials. The Court finds that Newhouse's opinion is not compelling with regard to establishing an appearance of merit of the proposed claim as it fails to attribute any purported deficiency in the roadway with sufficient specificity so as to be a contributing cause of the accident.

The Court has also considered all the other relevant factors. Movant's purported excuse for the delay is that there was no reason to expect that there would be an error in the description of the location as set forth in the MV-104A report (Movant's Attorney's Affirmation, ¶ 24). However, as noted by defense counsel, it was incumbent upon movant's counsel who prepared the initial Notice of Intention to File a Claim to establish the location of the accident. In this respect, movant's father, Joseph Hyatt, who responded to the scene of the accident in his capacity as the Fire Chief of the North Highlands Fire Department and as Mutual Aid First Responder, [*4]was in a unique position to assist counsel (Movant's Ex. F). Hyatt's affidavit indicates that the firehouse where he was stationed was two miles south of the accident location and that he was familiar with the roadway in that area (id.). The Court finds that counsel's mistaken reliance solely upon the MV-104A report is not excusable when counsel could have conducted their own independent investigation which would have necessarily included questioning movant's father or any other available witnesses (see Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]; Matter of Maurantonio v State of New York, 266 AD2d 290 [2d Dept 1999]).

It is also noted that movant has another available remedy against the driver of the vehicle in which he was a passenger. Another factor weighing against granting movant's application is movant's failure to provide timely notice to defendant and an opportunity to investigate the accident. Defendant, however, did not establish that it has suffered substantial prejudice in that regard (see Matter of Newcombe v Middle Country Cent. Sch. Dist., 28 NY3d 455 [2016]).

Accordingly, the Court finds that upon weighing all the factors, it would be futile to grant movant's late claim application despite the unfortunate injuries sustained by movant in the accident. Movant's late claim application is therefore DENIED.

Footnotes

Footnote 1:Alternatively, movant seeks leave to amend its initial Notice of Intention to File a Claim which was timely served. The Court of Claims Act, however, does not provide for the amendment of a Notice of Intention to File a Claim; accordingly that branch of claimant's application is DENIED. While the Court has the power to grant an application to treat a timely served Notice of Intention to File a Claim as a claim, movant's timely served Notice of Intention to File a Claim fails to accurately set forth the location of the accident; therefore the Notice of Intention to File a Claim cannot be treated as a claim under Court of Claims Act § 10 (8) (a).