Allstate v. State

• Decision Date: 07 June 2012
• Docket Number: # 2012-028-520,Motion No. M-81076
• Parties: ALLSTATE v. THE STATE OF NEW YORK
• Court: New York Court of Claims

ALLSTATE

v.THE STATE OF NEW YORK

# 2012-028-520

Motion No. M-81076

Court of Claims of New York

June 7, 2012

Synopsis

Permission to late file granted where delay was caused by reasonable confusion as to the owner of an overhead traffic signal and nature of incident, where signal fell onto vehicle below it, provided notice and motivation for the State to conduct an investigation.

Case information

UID:                             2012-028-520
                Claimant(s):                     ALLSTATE INSURANCE COMPANY a/s/o ANTHONY
                                                 CASTINA
                Claimant short name:             ALLSTATE
                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-81076
                Cross-motion number(s)
                Judge:                           RICHARD E. SISE
                                                 MOLOD SPITZ & DESANTIS, P.C.
                Claimant's attorney:
                                                 BY: Ciaran McGrath, Esq.
                                                 HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL
                Defendant's attorney:            BY: John L. Belford, IV, Esq.
                                                 Assistant Attorney General
                Third-party defendant's
                attorney:
                Signature date:                  June 7, 2012
                City:                            Albany
                Comments:
                Official citation:
                Appellate results:
                See also (multicaptioned case)
                 

Decision

The following papers were read on Claimant's motion for permission to file an untimely claim:

1. Notice of Motion and Supporting Affirmation of Ciaran McGrath, Esq., with annexed Exhibits;

2. Affirmation in Opposition of John L. Belford, IV, AAG, and

3. Affirmation in Reply of Ciaran McGrath, Esq., with annexed Exhibits.

Filed papers: None

Movant's proposed claim (McGrath Affirmation, Exhibit F) alleges that on July 29, 2011, a 2007 Toyota owned by Claimant's insured was struck by a falling traffic signal at the intersection of Route 112/Main Street and East Broadway in Port Jefferson, New York. The itemized estimate of damages is for $1,276.72.

Late claim relief is available only if the motion is brought within the applicable CPLR Article 2 statute of limitations. If this claim were asserted against a private citizen or organization, it would have to be commenced within three years (CPLR 214), and thus the application is timely.

In order to determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in the Court of Claims Act § 10(6), as well as any other relevant factors. The existence or absence of any one of these factors is not determinative, and the list of factors is not exhaustive (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The six statutory factors are as follows:

(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 upon the attorney general a timely claim or to serve a notice of intention resulted in substantial prejudice; and

(6) whether the claimant has any other remedy.

On the issue of delay, Movant's counsel states that his client began investigating the accident the day after it happened and initially concluded that the traffic light was owned and maintained by the Village of Port Jefferson and/or the County of Suffolk. Counsel was retained and on September 28, 2011, two months after the accident, both the Village and the County were served with Notices of Claim (id., Exhibit A). On October 5 and October 14, respectively, an insurer of the Village and the County Attorney for Suffolk County each informed Claimant's counsel that their principal had no responsibility for maintenance of the subject traffic light (id., Exhibits B, C). Claimant thereafter sent a F.O.I.L. request to the New York State Department of Transportation ("DOT") for records relating to the traffic light. The request was acknowledged by DOT on December 19, 2011 and by the DOT Records Access Officer on January 19, 2012 (id., Exhibit D), but counsel states that there had been no further response by the time the instant motion was commenced in February 2012 (id., ¶ 19). Thus, it does not appear that there has been any proloned period of inaction or inattention to the matter, and, in addition, DOT's failure to promptly respond to the FOIL inquiry suggests that confusion regarding the responsible party was reasonable. Accordingly, the Court finds that this factor does not weigh against the movant.

With respect to whether Movant has an alternative remedy, it would appear that neither the Village nor the County are possible defendants, and an action can be maintained only against the party responsible for the overhead traffic light. Since Defendant does not raise...