Witko v. State

• Decision Date: 09 February 1995
• Citation: 622 N.Y.S.2d 369,212 A.D.2d 889
• Parties: Richard WITKO et al., Appellants, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 369

622 N.Y.S.2d 369

212 A.D.2d 889

Richard WITKO et al., Appellants, v. STATE of New York, Respondent.

Supreme Court, Appellate Division Third Department.

Feb. 9, 1995.

Buckley, Mendleson & Criscione P.C. (John J. Criscione, of counsel), Albany, for appellants.

Dennis C. Vacco, Atty. Gen. (Troy J. Oechsner, of counsel), Albany, for respondent.

Before CARDONA, P.J., and MIKOLL, CREW, WHITE and YESAWICH, JJ.

CARDONA, Presiding Justice.

Appeals (1) from an order of the Court of Claims (Lyons, J.), entered November 10, 1993, which denied claimants' application pursuant to Court of Claims Act § 10(6) for permission to file a late notice of claim, and (2) from an order of said court (Corbett, P.J.), entered March 22, 1994, which denied claimants' motion for reconsideration.

On August 4, 1991 claimant Richard Witko (hereinafter claimant) suffered personal injuries in a bicycle accident stemming from an alleged attack by several dogs as he was pedaling past the home of Daniel Hart located in the Town of New Scotland, Albany County. Claimant and his wife, claimant Sally Witko, commenced a personal injury action in Supreme Court against Hart. Thereafter, it was discovered that Hart was a Trooper with the State Police assigned, at the time of the accident, to a special canine unit. Believing that the dogs involved in the accident belonged to the State Police, claimants made an application to the Court of Claims for permission to file a late notice of claim. In his supporting affidavit claimant stated, "At that time, I was attacked by several canine alighting from 9 Spore Road. I was knocked off my bicycle * * * ". Claimant provided no further description of the accident. The application was denied, inter alia, because claimant's factual allegations were too tenuous to provide an actual appearance of merit. The Court of Claims also determined that (1) there was no excuse for claimants' delay in filing the application, (2) there was no notice on the part of the State of the essential facts constituting the claim, and (3) claimants' Supreme Court action was an alternative remedy.

Claimants moved to renew and reargue, appending to their papers the examinations before trial in the Supreme Court action of Hart and his wife. Hart's deposition indicated that two of the three dogs possessed by Hart were his personal pets and one belonged to the State Police. The dogs were playing when claimant pedaled along the street near Hart's property. The deposition further shows that Hart's older dog and the police dog obeyed Hart's command to "stay", and that it was Hart's 7 1/2-month-old puppy which darted into the road in front of claimant. The accident occurred when claimant's bicycle struck the puppy.

The Court of Claims denied the motion concluding that the new information did not add to the appearance of merit, particularly in light of claimant's cursory allegation ¹ and the failure to overcome the other deficits in the earlier application. Claimants appeal both orders.

While no particular factor under Court of Claims Act § 10(6) is controlling in determining whether to grant an application for permission to file a late notice of claim (see, Matter of Powell v. State of New York, 187 A.D.2d 848, 849, 589 N.Y.S.2d 950), here, a weighing of several relevant factors militates against granting claimants' application. First, claimants provide no excuse for the delay in filing. Second, there is insufficient proof of notice to the State. We reject claimants' contention that the observations by Hart and his subsequent casual conversations with co-workers established notice to the State of the essential facts constituting the claim. Notice will not be imputed to the State where, as here, the claimed knowledge is that of the alleged tortfeasor, and not that of a person possessing the supervisory authority to initiate an investigation into the claim...