Moldovan v. NYS Dep't of Transp.

CourtNew York Court of Claims
Writing for the CourtWalter Rivera, J.
Citation2022 NY Slip Op 22191
PartiesThomas V. Moldovan Claimant(s) v. NYS Department of Transportation (NYSDOT), Defendant(s)
Decision Date05 May 2022

2022 NY Slip Op 22191

Thomas V. Moldovan Claimant(s)
v.

NYS Department of Transportation (NYSDOT), Defendant(s)

Court of Claims

May 5, 2022


Claimant's attorney: THOMAS V. MOLDOVAN Pro Se

Defendant's attorney: HON. LETITIA JAMES Attorney General for the State of New York By: Suzette Corrine Merritt, Assistant Attorney General

Walter Rivera, J.

The following papers numbered 1-2 were read and considered by the Court on movant's late claim application:

Notice of Motion with Attachments 1

Affirmation in Opposition 2

Movant's Rebuttal to Affirmation in Opposition and Exhibits 3

Movant moves for permission to file and serve a late claim for property damage arising on June 15, 2021 when movant's vehicle hit a pothole on New York State Route 94 in Florida, New York. The proposed claim alleges that movant was driving his vehicle to work when he hit a deep, narrow pothole on the right side of the road, blowing out both of his right-sided tires and cracking both wheel rims. Defendant opposes the motion.

The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 A.D.2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 [6]). These factors 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 state was substantially prejudiced; (5) whether the movant has any other available remedy; and (6) whether the claim appears to be meritorious (id.). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 N.Y.2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the movant's application (Savino v State of New York, 199 A.D.2d 254 [2d Dept 1993]; Prusack v State of New York, 117 A.D.2d 729 [2d Dept 1986]).

Before addressing the six statutory factors, the Court must determine whether movant's alleged causes of action are timely under CPLR Article 2 (Court of Claims Act § 10 [6]). Claims for property damage are governed by a three year statute of limitations (CPLR 214). The instant claim accrued on June 15, 2021. As the instant motion was served upon the Office of the Attorney General on January 14, 2022 and filed with the Clerk of the Court on February 7, 2022, it is timely under CPLR Article 2.

Movant has not directly addressed any of the statutory factors set forth in Court of Claims Act § 10 (6). However, movant filed documents with his rebuttal that support his application. The State opposes the motion on grounds that: movant has failed to provide a reasonable excuse for the delay in filing the claim, the State will be prejudiced if the Court grants movant's motion, and the proposed claim lacks merit.

Turning then to the first factor in the Court's late claim analysis, the Court finds that movant has failed to establish that his delay in filing the claim is excusable. Although movant states that he initially filed a small claim in New Windsor Justice Court before being directed to file a claim in the Court of Claims, movant's failure to identify the proper forum to bring his claim is not an acceptable excuse for failing to timely file a claim (see Peterson v State of New York, 84 Misc.2d 296, 298 [Ct Cl 1975] [finding that the movant failed to proffer a reasonable excuse where he averred that he did not know in which forum to sue the State]). Therefore, this factor does not weigh in movant's favor.

The next three factors-whether the state had notice of the essential facts constituting the claim, whether the state had an opportunity to investigate the circumstances underlying the claim, and whether the state was substantially prejudiced-are interrelated and therefore frequently considered together. Movant does not address these...

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