Woodley v. State

• Decision Date: 20 December 1976
• Citation: 390 N.Y.S.2d 561,88 Misc.2d 889
• Parties: Luzella WOODLEY and Arthur Woodley, her husband, Petitioners, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 561

390 N.Y.S.2d 561

88 Misc.2d 889

Luzella WOODLEY and Arthur Woodley, her husband, Petitioners, v. The STATE of New York, Defendant.

Court of Claims of New York.

Dec. 20, 1976.

Kaiser, Murray, Traficanti & Hunt by Douglas J. Hunt, Ellenville, for petitioners.

Louis J. Lefkowitz, Atty. Gen. by Medwin & McMahon, Albany, of counsel (No Appearance), for the State.

MEMORANDUM OPINION

FRANK S. ROSSETTI, Judge.

On March 27, 1976, petitioner Luzella Woodley sustained severe injuries after being struck by an automobile owned by the State and driven by an employee thereof. She thus had until June 25, 1976 to file a claim or notice of intention (Court of Claims Act, § 10(3)), but failed to do either. Petitioners now move for permission to file a claim out of time pursuant to Court of Claims Act section 10.

The relevant provisions of said section were recently amended (L.1976, ch. 280, eff. 9/1/76) and are now found in subdivision 6. ^* Previously, even though permission to late file was addressed to the Court's discretion, three mandatory requirements all had to be met before such discretion could be exercised. (See De Marco v. State, 43 A.D.2d 786, 787, 350 N.Y.S.2d 230, 231, affd. 37 N.Y.2d 735, 374 N.Y.S.2d 619, 337 N.E.2d 131.) The new subdivision 6 requires only that the Court 'consider' certain factors, among others. We believe this change in language evinces an intent to grant this Court wider discretion and, in the proper case, to permit a late filing where less than all of said factors favor same. Our interpretation is supported by the legislative history of the amendment which indicates its purpose is to provide greater, and not merely more uniform, access to this Court. (See McKinney's Sess. Laws, 1976, pp. 2311, 2312.) Of course the former mandatory requirements are listed, however, their wording has been changed somewhat. The pertinent portion of the new subdivision reads as follows:

'(T)he court shall consider, among other factors, whether the delay in filing the claim was excusable; 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; whether the claim appears to be meritorious; whether the failure to file a timely claim or notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.'

At the outset, it is observed that the State did not present an affidavit in opposition to the relief sought, but merely submitted a memorandum of law. This certainly does not meet the evidentiary showing a party must make to successfully oppose a properly supported motion. Consequently, the Court has treated all allegations in the moving papers as true (see Peterson v. State, 84 Misc.2d 296, 298, 374 N.Y.S.2d 1002, 1005, and cases cited), including the proposed claim (see Buffington v. State, 204 Misc. 217, 218, 121 N.Y.S.2d 357, 358), and we have drawn all favorable inferences therefrom.

The above-noted evidentiary failure of defendant has its most immediate impact in respect to the factors of the State's notice and opportunity to investigate. The affidavits of both petitioners allege that the superiors of the State's driver were notified of the accident. Normally greater details of petitioners' source of knowledge of said notice would be more appropriate, but defendant's failure to evidentially refute said allegatio constrains the Court to accord them at least some weight. Further, and more importantly, a letter to the injured petitioner from the State's insurance carrier, dated May 20, 1976 (54 days after the accident), indicates that the carrier was aware of the accident sufficiently enough to make an inquiry thereof. By reason of this letter inquiry and the other attendant circumstances, we must conclude that the State was also aware of the essential facts constituting petitioners' proposed claim and had the opportunity to conduct an investigation of the surrounding events.

Two other factors to be considered are excuse and prejudice. The affidavit of petitioner Luzella Woodley discloses she was hospitalized for 103 days and the claim delineates the severe injuries sustained, including head and brain injuries rendering her semi-conscious for about ten days. A supporting affidavit from petitioner's physician confirms the fact of her hospitalization and that she was incapacitated and immobilized at least until June 24, 1976. Said physician also states that Mrs. Woodley was in pain and under medication during much of her hospitalization and that she could not perform in a normal manner during the ninety days after her accident (see Bloom v. State, 5 A.D.2d 930, 172 N.Y.S.2d 70). Petitioners' papers further establish that an attorney was retained within a week of Mrs. Woodley's discharge from the hospital. Under the law prior to the subject amendment, we believe it clear the above facts would have demonstrated a reasonable excuse. (See Carmen v. State, 49 A.D.2d 965, 966, 373 N.Y.S.2d 698, 699; Stabile v. State, 12 A.D.2d 698, 207 N.Y.S.2d 509; Bloom v. State, supra; cf. Crane v. State, 29 A.D.2d 1001, 1002, 289 N.Y.S.2d 521, 523.) However, under such law it was the apparent rule that only the ninety-day period following accrual had to be excused. (See Rugg v. State, 278 App.Div. 216, 218, 104 N.Y.S.2d 633, 635, revd. other grounds 303 N.Y. 361, 102 N.E.2d 697, mod. 279 App.Div. 810, 109 N.Y.S.2d 359, but see Bloom v. State, supra, 5 A.D.2d 931, 172 N.Y.S.2d 71; Penn No. 5 v. State, 205 Misc. 18, 20, 126 N.Y.S.2d 659, 660.) Because of the language changes in new subdivision 6, we are of the view that the excuse now offered must relate to a more extensive period, to wit, from the accrual date to the date leave is sought to file a late claim. Thus, although the facts at hand presumably excuse a delay of up to 3 1/2 months, the only discernible excuse thereafter was the...