Cockburn v. Town of Mina
| Decision Date | 19 September 2016 |
| Citation | 2016 N.Y. Slip Op. 26294,53 Misc.3d 1002,38 N.Y.S.3d 736 |
| Parties | Sheila COCKBURN, Claimant v. TOWN OF MINA, NEW YORK, Defendant. |
| Court | New York Supreme Court |
Terrence P. Higgins, Esq., of Counsel, Higgins Kane Law Group, P.C., Attorney for Plaintiffs.
Paula M. Eade Newcomb, Esq., of Counsel, Bouvier Partnership, LLP, Attorneys for Defendant.
The principal question for the court is whether claimant will be permitted to file an exceptionally late notice of claim.
On May 25, 2015, claimant was a passenger on a three-wheeled motorcycle, commonly referred to as a “trike,” operated by her late husband, Russell Cockburn. While in the vicinity of Route 426 and Stateline Rd.—which straddles the border between Mina, N.Y. and Greenfield Township, PA—Russell Cockburn lost control of the trike, went off the road and crashed into the side of a barn. His injuries were fatal. His wife, the claimant, suffered serious injuries, which required her hospitalization. The Pennsylvania State Police (PSP) responded to the accident scene that day and conducted a full investigation, which included taking measurements and photographs.
Claimant initially hired a Pennsylvania law firm to represent her legal interests. A copy of a police report was received by her attorneys on August 28, 2015. It lists “driver action” as the main factor in the accident and characterizes the driver action as “driving too fast for conditions.” The report also states the trike, “lost control due to loose gravel,” and crashed on the Pennsylvania side of the border. Although a close inspection of the report's accident diagram suggests the road defect might have been on the New York side of the border, the narrative as a whole indicates the accident occurred in Pennsylvania.
Claimant timely filed a notice of intent to pursue civil action (the Pennsylvania equivalent of a New York notice of claim) on October 1, 2015 and forwarded the police report to the Greenfield Township Municipal Authority. The township's insurance carrier responded with an email on October 14, 2015 and advised, “attached is a document that reflects that the roadways that your clients travelled, on which the alleged hazardous condition existed, are in located [sic] N.Y. state.” The attached document appears to be the diagram from the police report with additional handwritten lines and notations demarking the Pennsylvania and New York sides of the roadways. By letter dated December 8, 2015, claimant's attorneys sent a so-called “right to know request” under Pennsylvania law to the PSP, which asked for, “a complete copy of the reports, photographs and any supplemental documentation” regarding the accident.
During this time frame, Terri Singer, the daughter of Russell and Sheila Cockburn, was appointed as executor of her father's estate. She retained a Buffalo, N.Y. law firm to represent her legal interests. On January 12, 2016, Ms. Singer filed a notice of claim against the Town of Mina as the first step in a wrongful death lawsuit premised, in major part, upon the theory that her father's death was caused by the negligence of the Town of Mina in creating and/or failing to remedy a defective condition, namely, loose gravel on the roadway.
Claimant's attorneys received a correspondence from the PSP on January 14, 2016 denying their request for the more complete PSP file. Relevantly, the letter explained that such documents could not be produced without a judicial subpoena which, in turn, required the existence of a pending lawsuit. Apparently, claimant had not asked a court to issue such a subpoena and, in any event, decided to settle her personal injury lawsuit against the Pennsylvania municipality.
On February 17, 2016 and in furtherance of her notice of claim and wrongful death lawsuit against the Town of Mina, Ms. Singer brought a show cause order, resulting in the issuance of a March 7, 2016 judicial subpoena duces tecum. This subpoena compelled the PSP to produce their complete police report. It was provided to Ms. Singer's attorneys on April 15, 2016. The more complete police report includes color photographs of the accident scene in general and the loose gravel in particular. It also appears to more definitively demonstrate that both the allegedly defective road condition, as well as the beginning of the accident, was in Mina, NY.
According to her sworn affidavit, claimant first learned of the Town of Mina's “possible involvement” in mid-June of 2016. She promptly requested the attorneys for Ms. Singer to represent her as well. They declined, purportedly citing a conflict of interest. Claimant then began a search for another Western New York attorney and retained her current lawyer on July 6, 2016. The instant litigation was commenced on August 8, 2016 by the filing of a show cause order, which seeks permission to file a late notice of claim. Claimant followed-up with the filing of a summons and complaint on August 12, 2016 setting forth her causes of action and theories of tort liability.
General Municipal Law § 50–e(1)(a) requires a claimant to serve a notice of claim upon a municipal defendant within 90 days of the date that claim arose. General Municipal Law § 50–e(5) permits a court, in its discretion, to extend the time to serve a notice of claim beyond 90 days if the application is made within one year and 90 days (i.e. 455 days) from the date the claim arose (Abdul v. City of New York, 131 A.D.3d 1165, 16 N.Y.S.3d 743 ). The instant application was made within one year and 90 days (442 days, to be precise) from the date of the accident. Accordingly, the court may consider whether to excuse the claimant's 352 day delay in filing her notice of claim.
The purpose of a notice of claim is to allow the municipal defendant to make a prompt investigation of the facts and to preserve the relevant evidence. General Municipal Law § 50–e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones. The statute should therefore be applied flexibly so as to balance two...
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