Court of Claims, May 5, 2022

Thomas V. Moldovan, claimant pro se.

Letitia James, Attorney General (Suzette Corrine Merritt of counsel), for defendant.

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 AD2d 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 & Firemen's Retirement Sys., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to{**75 Misc 3d at 1063} 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 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 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 [*2]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 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.{**75 Misc 3d at 1064}

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, exhibit 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 State Farm Mut. Auto. Ins. Co. v State of New York, 2012 NY Slip Op 33991[U] [Ct Cl 2012]; National Grange Mut. Ins. Co. v State of New York, Ct Cl, May 23, 2006, Midey, Jr., J., UID No. 2006-009-030).

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 [Ct Cl 2003]; see Court of Claims Act § 10 [6]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [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, 2016 NY Slip Op 33159[U], *3 [Ct Cl 2016]; see Matter of Santana, 92 Misc 2d at 11-12).

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 NY2d 271 [1986]; Weiss{**75 Misc 3d at 1065} v Fote, 7 NY2d 579 [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 NY2d 91 [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 [*3]condition and then failed to take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]). In order to constitute constructive notice, it has been held that a defect must be visible, apparent and exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Finally, the State cannot be held liable "unless its ascribed negligence is a proximate cause of the accident" (Ring v State of New York, 270 AD2d 788, 789 [3d Dept 2000]).

For the purpose of deciding this motion, movant's unrefuted factual allegations are accepted as true. "Facts stated in a motion for leave to file a late claim . . . are deemed true for purpose of [the] motion, when not denied or contradicted in opposing affidavits" (Sessa v State of New York, 88 Misc 2d 454, 458 [Ct Cl 1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]; see Schweickert v State of New York, 64 AD2d 1026, 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]).

The State refutes certain of movant's allegations, but movant provides documentation of these allegations in his rebuttal. First, the State alleges that movant failed to provide any documentation establishing that he filed a small claim for damages with the NYSDOT. However, in response to this allegation, movant submits a letter from a senior attorney with the NYSDOT, dated July 20, 2021, advising movant the NYSDOT investigated and denied his small claim for damages (rebuttal, exhibit A). The State also alleges that movant failed to provide any documentation showing that he filed a small claims action in the New Windsor Justice Court. In response, movant provided a receipt for the filing of his small claims action in New Windsor Justice Court, and a letter from the New Windsor Justice Court showing that a hearing on movant's small claim was scheduled for October 21, 2021 (rebuttal, exhibit C). Movant further alleges in his reply papers that he attended the October 21, 2021 hearing and was told that his claim must be filed in the Court of Claims.{**75 Misc 3d at 1066}

Here, movant has also submitted a letter from the owner of the repair shop where he parked his car after hitting the potholes on NYS Route 94. The owner states in the letter that he observed two completely flat tires on the right side of the car. Movant also submits receipts documenting the cost of the repairs performed on his car, including new tires and new wheel rims. The receipts indicate that the bill for new tires and new rims, and for the towing of movant's car and labor to install the new tires, was paid in full.^[FN*] Movant seeks reimbursement of $161.72 for two new tires; $470.04 for four new rims; $85 for towing; $55 for labor; and $62.74 in taxes. The reimbursement sought by movant is well documented in the invoices attached to movant's motion papers.

The damage sustained by movant's vehicle indicates that a dangerous condition in the form of a pothole large enough to cause significant damage existed on the roadway. Moreover, the significant damage to movant's vehicle "supports an inference that the pothole was of sufficient depth and size that it may have existed long enough that it could or should have been discovered during routine inspections" (Beal v State of New York, 2015 NY Slip Op 32994[U], *3 [Ct Cl 2015]; see also Pierre v State of New York, 2014 NY Slip Op 34064[U] [Ct Cl 2014] [granting late claim application where the movant's car sustained [*4]significant damage after hitting a pothole]). Movant also submits a photograph depicting repairs performed on the potholes approximately one week after movant's accident, inferring that the State performed the repairs (rebuttal, exhibit D). The State does not deny that it performed the repairs. As such, such proof could establish that the State maintained the area where the accident occurred (see Antonsen v Bay Ridge Sav. Bank, 292 NY 143, 146 [1944]).

Accordingly, upon consideration of the six factors enumerated in Court of Claims Act § 10 (6), movant's motion for leave to serve and file a late claim against the State is granted. The claim, with the caption to reflect the State of New York as the only proper party defendant, shall be served and filed within 45 days of the filed-stamped date of this decision and order and shall be served and filed in compliance with the provisions of the Court of Claims Act.