Moldovan v. NYS Department of Transportation
| Decision Date | 05 May 2022 |
| Docket Number | Claim No. XXXXX |
| Parties | Thomas V. MOLDOVAN, Claimant(s) v. NYS DEPARTMENT OF TRANSPORTATION (NYSDOT), Defendant(s) |
| Court | New York Court of Claims |
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
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, 749 N.Y.S.2d 186 [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, Inc. v. New York State Employees’ Retirement Sys. Policemen's and Firemen's Retirement Sys. , 55 N.Y.2d 979, 449 N.Y.S.2d 185, 434 N.E.2d 254 [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, 604 N.Y.S.2d 970 [2d Dept. 1993] ; Prusack v. State of New York , 117 A.D.2d 729, 498 N.Y.S.2d 455 [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, 374 N.Y.S.2d 1002 [Ct. Cl. 1975] []). 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 factors. The State argues that these three factors should weigh against movant because the incident occurred in the summer of 2021 and weather conditions during the winter could have caused road changes in the time between the incident and when movant filed the instant late claim application.
Upon reviewing the papers submitted in movant's reply papers, the Court finds that the aforementioned three factors weigh in favor of movant. In that regard, movant submits a letter from an attorney with the New York State Department of Transportation (NYSDOT) dated July 20, 2021, stating that the NYSDOT investigated movant's claim for damages to his vehicle caused by the pothole and determined that the State was not liable (Rebuttal, Ex. A). Thus, the State had notice of the essential facts constituting the claim and an opportunity to investigate the facts of movant's claim no later than July 20, 2021—slightly over one month after movant's vehicle sustained damage. In light of the NYSDOT's investigation of movant's small claim for damages, the State would not be prejudiced if the Court permitted movant to file a late claim (see Luppino v. State of New York , UID No. 2012-048-064 [Ct Cl, Bruening, J., Sept. 4, 2012]; Grange v State of New York , UID No. 2006-009-030 [Ct Cl, Midey, Jr., J., May 23, 2006]).
As to the fifth factor, it appears that movant has no other available remedy as his small claim for damages was denied by the NYSDOT, and the New Windsor Justice Court where movant filed a small claims proceeding lacks jurisdiction over the State. Accordingly, this factor also weighs in movant's favor.
Turning then to the final factor, in order to establish a meritorious cause of action, claimant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" ( Rizzo v. State of New York , 2 Misc. 3d 829, 834, 772 N.Y.S.2d 210 [Ct. Cl. 2003] ; see Court of Claims Act § 10 [6] ; Matter of Santana v. New York State Thruway Auth. , 92 Misc. 2d 1, 11, 399 N.Y.S.2d 395 [Ct. Cl. 1977] ). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [claimant] to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [claimant] to file a late claim" ( Williams v State of New York , UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana , 92 Misc. 2d at 11-12, 399 N.Y.S.2d 395 ).
The State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition ( Friedman v. State of New York , 67 N.Y.2d 271, 502 N.Y.S.2d 669, 493 N.E.2d 893 [1986] ; Weiss v. Fote , 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 [1960] ). The State is not, however, an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable ( Tomassi v. Town of Union , 46 N.Y.2d 91, 412 N.Y.S.2d 842, 385 N.E.2d 581 [1978] ). The movant has the burden to show that the State either created a dangerous condition or had actual or constructive notice of the presence of a dangerous condition and then failed to take reasonable measures to correct it ( Brooks v. New York State Thruway Auth. , 73 A.D.2d 767, 768, 423 N.Y.S.2d 543 [3d Dept. 1979], affd 51 N.Y.2d 892, 434 N.Y.S.2d 974, 415 N.E.2d 963 [1980] ). In order to constitute constructive notice, it has been held that a defect must be visible, apparent and exist for a...
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