Schoentube v. State, 2022-50074

CourtNew York Court of Claims
Writing for the CourtMAUREEN T. LICCIONE, JUDGE
PartiesIn the Matter of the Application of Paul Schoentube, Claimant, v. The State of New York, Defendant.
Decision Date05 January 2022
Docket Number2022-50074

In the Matter of the Application of Paul Schoentube, Claimant,

The State of New York, Defendant.

No. 2022-50074

Court of Claims

January 5, 2022

Unpublished Opinion

For Claimant:

Donnelly Stehn, LLP

By: Joseph P. Donnelly, Esq.

For Defendant:


By: John L. Belford, IV, Assistant Attorney General


Movant moves for permission to file and serve a late claim asserting a cause of action for negligence arising from a motor vehicle accident that occurred on November 3, 2020 at the intersection of County Access Road and Hauppauge Spur (a/k/a Raoul Wallenberg Drive). Defendant opposes the motion.

The proposed claim states that on November 3, 2020, movant was a passenger in a vehicle driving westbound on County Access Road when the vehicle that movant was riding in collided with a vehicle traveling northbound on Hauppauge Spur. The proposed claim alleges that the vehicle in which movant was a passenger failed to stop at the intersection due to a missing, damaged, and/or defective stop sign that was lying on the ground at the intersection.

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 (Court of Claims Act § 10 [6]). 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 cause of action is timely under CPLR Article 2 (Court of Claims Act § 10 [6]). Movant's cause of action accrued on November 3, 2020 and the three year statute of limitations applicable to actions for personal injury applies (CPLR 214). As movant filed the instant motion on September 7, 2021, it is timely under CPLR 214.

Turning then to the first factor in the Court's late claim analysis, movant argues that he sustained serious injuries as a result of the accident, including a traumatic brain injury. He was transferred from the accident scene to the hospital by ambulance where he was admitted for 10 days and treated in the Intensive Care Unit. In the weeks and months following this injury, movant experienced the effects of his brain injury, including constant headaches, intracranial pressure, insomnia, and persistent neck, back and shoulder pain. His head injury continues to affect his mental condition to this day. Moreover, movant states that he was not aware of the significance of the missing stop sign until he retained counsel and was informed of statements in the police accident report regarding the missing stop sign. At that point more than 90 days had elapsed since the accident.

Physical incapacitation is an acceptable excuse for failing to timely file a claim (Wolf v State of New York, 140 A.D.2d 692, 693 [2d Dept 1988]). However, such a finding must be supported by relevant medical evidence (see Cabral v State of New York, 149 A.D.2d 453, 453 [2d Dept 1989]). The medical records submitted as Exhibit G to movant's affirmation in support of the motion document movant's medical treatment during the 10 days immediately following the accident. However, the medical records do not include a physician's affidavit establishing that movant's injuries prevented him from timely filing a claim (see Conroy v State of New York, 194 Misc.2d 71, 73 [Ct Cl 2002] [physician's affidavit established that movant was incapacitated and unable to timely file a claim]). Movant's own statements regarding his condition are insufficient to establish a reasonable excuse for the delay (Magee v State of New York, UID No. 2007-039-020 [Ct Cl, Ferreira, J., June 14, 2007]). [1]

Movant also alleges that he was not aware of the significance of the missing stop sign until he retained counsel more than 90 days after the accident. This...

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