Court of Claims, January 16, 2023

Beldock Levine & Hoffman, LLP (David B. Rankin of counsel) for movant.

Letitia James, Attorney General (Suzette Corinne Merritt of counsel), for respondent.

Movant Isaiah Goines seeks to bring a personal injury action for injuries allegedly sustained as a result of a high-speed police chase in Orange County, New York. Movant seeks an order pursuant to Court of Claims Act § 10 (5) deeming his proposed claim as timely or, in the alternative, permitting him to file a late claim under Court of Claims Act § 10 (6). The State opposes the motion. For the reasons stated below, movant's application for relief under Court of Claims Act § 10 (5) is denied but, after consideration of all the relevant factors, the motion is granted insofar as it seeks late claim relief under Court of Claims Act § 10 (6).

According to the proposed claim^[FN1] and the police accident report of the incident submitted [*2]by movant, on April 19, 2021, movant was driving at a high rate of speed while traveling{**78 Misc 3d at 700} west on Interstate 84, in the passing lane. After observing movant driving above the posted speed limit, a New York State Police vehicle initiated pursuit, attempting to catch up to movant's car from the right-hand lane. As the vehicles neared an off-ramp, movant crossed two lanes of travel in an apparent attempt to exit the highway, lost control of his vehicle, and struck the guardrail. The car became airborne and overturned several times, and movant was ejected from the vehicle. Movant was rendered a paraplegic and currently resides in a nursing home where he receives full-time medical care and assistance with basic life functions. The claim asserts that the State, under the doctrine of respondeat superior for the conduct of uniformed state troopers acting within the scope of their duties, acted negligently and with reckless disregard for movant's safety in violation of Vehicle and Traffic Law § 1104 (e), by initiating and then failing to terminate the high-speed pursuit of movant, which resulted in movant's serious injuries.

It is undisputed that no claim or notice of intention to file a claim was filed and served upon the Attorney General within 90 days of the accrual of the claim (see Court of Claims Act § 10 [3]). Movant brought this application approximately five months after the expiration of that time period.

Court of Claims Act § 10 (5) is not applicable here.

The tolling provision of Court of Claims Act § 10 (5) provides that where a claimant is "under legal disability, the claim may be presented within two years after such disability is removed." In other words, where a claim accrues while a claimant is under a legal disability, "the two-year period is applicable and the claim allowable as of right" (Boland v State of New York, 30 NY2d 337, 342 [1972]), and "permission to file a claim is not necessary to validate a filing made within the [two]-year period after the removal of the disability" (id. at 343).

Movant argues that the claim should be deemed timely filed because his physical disability—including his paraplegia and related injuries that, from the time of the incident to date, prevent him from engaging in the basic activities of daily life—constitutes a legal disability under a plain reading of section 10 (5). Movant has submitted various medical records in support of his application which indicate the serious nature of his injuries, the several surgeries that were performed during the course of his medical treatment, and his extended hospitalization. In opposition, the State asserts that a physical disability has never been deemed a legal disability for purposes of Court{**78 Misc 3d at 701} of Claims Act § 10 (5) and, further, that movant's physical condition did not prevent him from meeting with his attorneys.

Court of Claims Act § 10 (5) does not define the term "legal disability," but infancy and incompetency have been recognized in this context as the two quintessential legal disabilities permitting application of section 10 (5)'s toll (see Barrett v State of New York, 161 AD2d 61, 64, 68 [2d Dept 1990] [referencing Court of Claims Act § 10 (5)'s "counterpart" tolling provision in CPLR 208 for those suffering from the disability of infancy or insanity], affd for reasons stated 78 NY2d 1111 [1991]; Kaplan v State of New York, 152 AD2d 417, 419 [3d Dept 1989]; see also Boland, 30 NY2d at 342-343 [psychiatric hospitalization]; Puckerin v State of New York, 159 AD3d 848 [2d Dept 2018] [psychiatric hospitalization]; Weber v State of New York, 267 App Div 325 [3d Dept 1944] [infancy]; cf. Baker v State of New York, 186 AD2d 329, 329 [3d Dept 1992] [holding section 10 (5) did not apply after "it was judicially determined that claimant was not an incapacitated person"]).

[1] Here, despite movant's extensive physical injuries and long hospitalization for medical [*3]treatment after the incident, movant has not established that he was incompetent or otherwise mentally incapacitated as required for a claimant to obtain relief under Court of Claims Act § 10 (5).^[FN2] To the contrary, the records submitted by movant indicate that, immediately after the incident, movant was able to describe his injuries to medical staff, and was also able to discuss and consent to numerous medical procedures and treatment over the following weeks and months. Moreover, movant has not cited any legal authority that has adopted or supports his broad reading of section 10 (5) as encompassing someone hospitalized with extensive physical injuries or suffering solely from a physical disability.

Indeed, other than one now-abrogated exception discussed below, the application of Court of Claims Act § 10 (5) has not been expanded beyond the commonly understood legal disabilities of infancy and incompetency because section 10 (5)—like all other filing requirements of Court of Claims Act § 10—is jurisdictional in nature and, thus, is to be "strictly applied" (Doe v State of New York, 221 AD2d 218, 218 [1st Dept 1995] [affirming denial of relief under Court of Claims Act § 10 (5) where the claimant was no longer mentally disabled and citing{**78 Misc 3d at 702} McCarthy v Volkswagen of Am. (55 NY2d 543 [1982]), which narrowly construed analogous CPLR 208 toll, in support of strict construction of section 10 (5)]; see also Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Greenspan Bros. v State of New York, 122 AD2d 249, 249 [2d Dept 1986]). As the Court of Appeals noted in discussing the Legislature's intent that the analogous tolling provision of CPLR 208 be "narrowly interpreted," a contrary, expansive interpretation of the statute "could greatly and perhaps inappropriately expand the class of persons able to assert the toll" and "weaken" the policy behind imposing the limitations periods in the first place (McCarthy v Volkswagen of Am., 55 NY2d at 548-549). This policy concern is of even greater significance where the State's waiver of its sovereign immunity under the Court of Claims Act is involved. Notably, the Court of Appeals has rejected application of the analogous CPLR 208 toll to an individual who, after being struck by a train owned by the defendant, "sustain[ed] extensive physical injuries"; was "hospitalized and treated with strong pain-killing drugs"; and was "unable to effectively attend to his affairs" (Eisenbach v Metropolitan Transp. Auth., 62 NY2d 973, 974-975 [1984] [citing McCarthy and explaining that insanity is "a concept equated with unsoundness of mind"]).

Movant's reliance on Crawford v State of New York (37 AD2d 450 [4th Dept 1971]) for the proposition that courts have expanded the definition of legal disability for purposes of Court of Claims Act § 10 (5) beyond infancy and incompetency is unavailing. Although movant is correct that the Crawford court considered a claimant's imprisonment to be a legal disability for purposes of the application of Court of Claims Act § 10 (5) in that case, Crawford has been effectively abrogated. Crawford's ruling was not based upon the fact of the claimant's incarceration and the attendant difficulties of prosecuting a claim from within prison; rather, the Court relied upon an incarcerated person's legal incapacity to sue under former section 79 of the Civil Rights Law (see 37 AD2d at 452; see also Kelly v State of New York, 57 AD2d 320, 322-323, 325 [4th Dept 1977] [explaining rationale of Crawford], affd on op below 45 NY2d 973 [1978]).^[FN3] The Civil Rights Law [*4]was later amended—effective September 10, 1973—to provide that "[a] sentence of {**78 Misc 3d at 703}imprisonment in a state correctional institution . . . shall not be deemed to suspend the right or capacity of any person so sentenced to commence and prosecute an action or proceeding in any court within this state" (Civil Rights Law § 79 [2]; see Kelly at 323, citing L 1973, ch 687, § 1). Appellate courts have thus subsequently held that incarcerated claimants are not under any legal disability within the meaning of Court of Claims Act § 10 (5), but rather, are subject to the typical 90-day filing requirement (see Hall v State of New York, 85 AD2d 835, 835-836 [3d Dept 1981] [affirming dismissal of claim and further noting that CPLR 208 was also similarly amended "to eliminate imprisonment as a ground for tolling the Statute of Limitations"]; see also Kelly, 57 AD2d at 325-326, affd on op below 45 NY2d 973).

In sum, movant has not established that he suffered from a qualifying legal disability under Court of Claims Act § 10 (5) at the time his claim accrued. Thus, to the extent movant seeks to deem his claim as timely filed under section 10 (5), that branch of the motion is denied.

Late claim relief under Court of Claims Act § 10 (6) is warranted.^[FN4]

Court of Claims Act § 10 (6) enumerates six factors to be weighed by the court in connection with a late claim motion: (1) whether the delay 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 claim appears to be meritorious; (5) whether the delay resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. This list is not exhaustive and the presence or absence of any one factor is not dispositive; rather, the court in its discretion balances these factors in making its determination (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]; see also Tucholski v State of New York, 122 AD3d 612, 612 [2d Dept 2014]).

As to the delay in filing, movant argues that his physical condition after the incident, throughout the 90-day filing period{**78 Misc 3d at 704} and beyond, constitutes a reasonable excuse. Movant again relies on the medical records he has submitted in support of his motion, primarily asserting that the catastrophic injuries he sustained as a result of the incident, and which have left him paralyzed and physically incapacitated, prevented him from consulting earlier with an attorney and timely filing the claim. The affirmation of movant's counsel further contends that, once counsel learned of the matter, it was difficult for counsel to meet and communicate with movant because, since the incident, he was bedridden in hospitals and nursing homes, where visitations were also curtailed due to COVID-19. Counsel notes that he was able to visit movant in the hospital in September 2021 and then immediately began an investigation into the claim. The State argues that no reasonable excuse for the delay exists because movant was discharged from the hospital where he was initially airlifted after the crash less than two months later, within the 90-day period to file and serve a claim or notice of intention to file a claim.[*5]

A potential claimant's physical/medical condition or hospitalization may constitute a reasonable excuse for purposes of Court of Claims Act § 10 (6) if supported by "either a physician's affidavit or hospital records" (Goldstein v State of New York, 75 AD2d 613, 614 [2d Dept 1980]; see Crofut v State of New York, 279 App Div 681, 681-682 [3d Dept 1951], affd 303 NY 897 [1952]; see also Bloom v State of New York, 5 AD2d 930, 931 [3d Dept 1958]; Carmen v State of New York, 49 AD2d 965, 965-966 [3d Dept 1975]; Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]; McGaughy v State of New York, 55 AD2d 823, 823 [4th Dept 1976]; Wolf v State of New York, 140 AD2d 692, 692 [2d Dept 1988]; cf. Cabral v State of New York, 149 AD2d 453, 453 [2d Dept 1989] [affirming denial of late claim relief where only support offered to explain delay was a "conclusory assertion by the claimant's counsel" regarding the claimant's alleged hospitalization]). Further, "the excuse need only be 'reasonable[,]' and it is not necessary that claimant establish his complete physical or mental inability to file on time" (Carmen, 49 AD2d at 966, quoting Stabile v State of New York, 12 AD2d 698, 698 [3d Dept 1960]).

Here, the medical records submitted in support of movant's application establish the critical nature of his injuries, including multiple vertebral fractures, cervicothoracic spinal column dislocation and spinal cord transection; cerebrovascular injury; and multiple extremity fractures, among other serious injuries.{**78 Misc 3d at 705} Movant underwent several spine and other surgeries during the course of his medical treatment, as well as a tracheostomy. The records further indicate that movant's traumatic spinal cord injury required mechanical ventilator support from a few days after the crash until a few months later. Although he was discharged on June 9, 2021, to another hospital from the hospital to which he was initially airlifted, the records indicate that he was returned to the first hospital for further surgery on July 3, 2021—and remained there until July 22, 2021, a date falling beyond the applicable 90-day filing period. Movant indicates in his own affidavit that, for months after the incident, he was unable to speak due to the placement of a tracheostomy collar or use his hands. Given the extensive documentation of movant's serious injuries, as well as his prolonged hospitalization and medical treatment, movant has established a reasonable excuse for the delay.

Contrary to the State's suggestion, the fact that several additional months passed from the time movant retained counsel to the filing of this application for late claim relief is of no moment inasmuch as the period to which the proffered excuse must refer is the 90 days after accrual of the claim (see Bloom, 5 AD2d at 931 [holding that "the 90-day period is the crucial time and if there is adequate excuse for letting that time go by, the effective disability (of the claimant) need not continue through all the succeeding period before the motion to file the claim is made"]; Cole, 64 AD2d at 1024, quoting Bloom).

Turning to the related factors of the State's notice of the essential facts, its opportunity to investigate, and whether it will be prejudiced by a late filing, the State does not oppose the motion on these grounds. Nor could it seriously do so where it is undisputed that the State received actual notice of the facts constituting the claim because the incident involved a state trooper driving a state police vehicle, and the State immediately commenced and conducted a lengthy investigation (see Wolf, 140 AD2d at 693; see also Tucholski, 122 AD3d at 612). In addition, the State also does not dispute movant's assertion that he has no other alternate remedy. Thus, for purposes of deciding this motion, movant's unrefuted factual assertions relating to these four factors must be taken as true and thereby weigh in movant's favor (see Sessa v State of New [*6]York, 88 Misc 2d 454, 458 [Ct Cl 1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]; see also Cole, 64 AD2d at 1024).{**78 Misc 3d at 706}

The final and most important factor here in determining the application for late claim relief is whether movant has demonstrated the appearance of a meritorious claim, because "it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; see also Calverley v State of New York, 187 AD3d 1426, 1427 [3d Dept 2020]; Shah v State of New York, 178 AD3d 871, 872 [2d Dept 2019]). The movant need not establish a prima facie case at this stage of the proceedings (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]), and a claim has the appearance of merit if it is "not . . . patently groundless, frivolous or legally defective, and the record as a whole . . . give[s] reasonable cause to believe that a valid cause of action exists" (Calverley, 187 AD3d at 1427; see also Goldberg v State of New York, 122 AD2d 248, 249 [2d Dept 1986]; Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]). In applying this standard, the court may consider "all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of apparent merit" (Fernandez v State of New York, 43 Misc 3d 1221[A], 2014 NY Slip Op 50741[U], *2 [Ct Cl 2014]).

As relevant here, Vehicle and Traffic Law § 1104 provides that the driver of an authorized emergency vehicle, including police vehicles, is permitted to exceed maximum speed limits and disregard certain other traffic rules "when involved in an emergency operation" (Vehicle and Traffic Law § 1104 [a]; see also § 101 [defining authorized emergency vehicle]). However, the provisions of section 1104 do not protect the drivers of such authorized emergency vehicles "from the consequences of [their] reckless disregard for the safety of others" (id. § 1104 [e]; see Saarinen v Kerr, 84 NY2d 494, 499-503 [1994] [analyzing and confirming section 1104 (e)'s heightened recklessness standard for determining the civil liability resulting from a police officer's privileged operation of covered emergency vehicle]).^[FN5] The reckless disregard standard requires evidence that the driver intentionally committed "an act of an unreasonable {**78 Misc 3d at 707}character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome" (Saarinen, 84 NY2d at 501 [internal quotation marks omitted]; see Frezzell v City of New York, 24 NY3d 213, 217 [2014]; see also Foster v Suffolk County Police Dept., 137 AD3d 855, 856 [2d Dept 2016]; Quintana v Wallace, 95 AD3d 1287, 1287 [2d Dept 2012]). The violation of an internal police policy may be an important, though not dispositive, factor in determining recklessness (see Criscione v City of New York, 97 NY2d 152, 158 [2001], citing Saarinen, 84 NY2d at 503 n 3; see also Teitelbaum v City of New York, 300 AD2d 649, 650 [2d Dept 2002], lv denied 100 NY2d 513 [2003]).[*7]

Here, the proposed claim alleges that the state troopers who initiated and continued pursuit of movant's vehicle acted negligently and with reckless disregard for movant's safety, in violation of Vehicle and Traffic Law § 1104 (e), and that this conduct proximately caused the accident and movant's injuries. Specifically, the claim alleges that the troopers acted recklessly in pursuing movant's speeding vehicle at more than 100 miles per hour and failing to terminate the pursuit because they were aware, or should have been aware, of the high probability that a collision would occur under such circumstances. The claim further alleges that other (unnamed) troopers, acting in a supervisory capacity, also acted recklessly by failing to direct termination of the pursuit when it became dangerous. The proposed claim appends a copy of the police accident report for the accident which indicates that, after observing movant driving at a high rate of speed in the left-hand lane of the interstate, the troopers pursued him in the right-hand lane, in an attempt to catch up to him. The accident report and attached diagram indicate that the crash of movant's vehicle occurred as both vehicles neared an off-ramp and movant attempted to exit the highway, losing control of his vehicle and striking the guardrail. In support of his motion, movant also argues that violations of internal police policies governing vehicle pursuits could constitute reckless disregard within the meaning of Vehicle and Traffic Law § 1104, and that he was in the process of attempting to obtain the State Police vehicle pursuit policy.

The State argues, in a cursory manner, that movant fails to make a sufficient showing of merit because he has not provided{**78 Misc 3d at 708} additional supporting documentation for his allegations. The State further contends that movant's own actions caused the accident and his resulting injuries. Specifically, the State asserts that movant was dangerously driving a stolen vehicle, in an attempt to evade capture by police, and that the accident occurred when he unsafely tried to exit the highway at a dangerous speed from the passing lane.

In reply, movant attaches the internal State Police policy governing vehicle pursuits that he subsequently received in response to his Freedom of Information Law request, as well as an affidavit and report from Professor Geoffrey Alpert, Ph.D., proffered as an expert in police vehicle pursuits. Dr. Alpert's affidavit opines that, in pursuing movant at speeds greater than 100 miles per hour, and subsequently failing to terminate the pursuit, the troopers violated the applicable State Police policy regarding high-speed vehicle pursuits and acted with reckless disregard for the safety of movant and others. Movant's reply submission also includes narratives by Trooper Quimby, who was on patrol and initiated the pursuit of movant's vehicle, and Investigator Joseph Fitzpatrick. Investigator Fitzpatrick's narrative states that movant was operating a vehicle that had been stolen during a carjacking in the Bronx,^[FN6] and that movant was clocked going 97 miles per hour by Trooper Quimby's radar before he activated his patrol car's lights and sirens and initiated pursuit, with both vehicles ultimately traveling at speeds greater than 100 miles per hour. Trooper Quimby's statement similarly indicates that movant's car sped [*8]up to over 100 miles per hour and failed to stop even though the patrol car's emergency lights were on. The trooper also stated that movant's driving created a grave risk of death to other drivers on the roadway. Movant's reply papers also include the statements of two witnesses, both of whom describe the speed of movant's car as going about 90 miles per hour, and that after the trooper vehicle pulled out to pursue movant, it took approximately 30 seconds for the patrol car to activate the emergency lights.{**78 Misc 3d at 709}

Although "the fact that [an] officer was exceeding the speed limit does not by itself constitute a predicate for the imposition of liability" (Powell v City of Mount Vernon, 228 AD2d 572, 573 [2d Dept 1996], citing Saarinen, 84 NY2d at 503), questions of fact appear to exist regarding, for example, what occurred in the moments before the accident; when the police vehicle's emergency lights were activated; and whether the troopers followed the State Police vehicle pursuit policy, or engaged in any actions during the pursuit that interfered with movant's ability to slow down or pull over. But the court may not engage in fact-finding in determining an application for late claim relief, and to the extent issues of fact exist, that does not vitiate the appearance of merit under Court of Claims Act § 10 (6) (see Jomarron v State of New York, 23 AD3d 527, 527 [2d Dept 2005]; see also Marcus v State of New York, 172 AD2d 724, 725 [2d Dept 1991]).

Thus, there is sufficient information within the proposed claim and the accompanying submissions to indicate that the claim is not "patently groundless, or that the [movant] may not be able to show, after a greater development of the facts, that he has a valid cause of action" (Goldberg v State of New York, 122 AD2d at 249 [internal quotation marks omitted], citing Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]), even under the demanding reckless disregard standard (see Frezzell v City of New York, 24 NY3d at 217-218 ["Whether the standard was met here is a fact-specific inquiry and our analysis is focused on the precautionary measures taken by (the officer) to avoid causing harm to the general public weighed against his duty to respond to an urgent emergency situation"]; see also Handelsman v Llewellyn, 208 AD3d 1 [1st Dept 2022] [denying summary judgment where issues of fact existed regarding whether police officers acted recklessly under the circumstances and whether the police pursuit was a proximate cause or a concurrent cause of the accident]).

[2] In sum, after carefully considering and weighing the relevant statutory factors, late claim relief is warranted because movant has a reasonable excuse for his delay in timely filing a claim, the State does not dispute the lack of prejudice and it acknowledges that it had notice and an opportunity to investigate the incident, and the proposed claim appears meritorious (see Bloom, 5 AD2d at 930-931 [affirming grant of late claim relief where the movant was immobilized in a hospital or at home as a result of skating injury during entire{**78 Misc 3d at 710} 90-day period and State had "abundant notice" of the accident and essential facts constituting the claim]; Cole, 64 AD2d at 1023-1024 [holding, upon consideration of entire record, that late claim relief was warranted where the movant was hospitalized after snowmobile accident for 13 days and remained either immobilized or nonambulatory for approximately six months, and State filed no affidavit claiming either prejudice or lack of notice]; Carmen, 49 AD2d at 966 [affirming grant of late claim relief, in view of all the circumstances, where the movant was hospitalized for eight days after fall from ladder, sustained bilateral fractures of both heels, remained bedridden and needed a wheelchair for approximately five months, and State had knowledge of essential facts constituting the claim inasmuch as a full accident report had been filed by police officer]; Crofut, [*9]279 App Div at 681-682 [granting late claim relief where the movants were hospitalized or bedridden for four and six months, respectively, and under medical care for seven months after car accident, and lack of knowledge or prejudice on the part of the State was not claimed], affd 303 NY 897 [1952]; McGaughy, 55 AD2d at 823 [granting late claim relief where the movant was hospitalized during the entire 90-day period, and State had actual knowledge and conceded it was not prejudiced by the late filing]; see also Toof v State of New York, 260 App Div 830, 830-831 [3d Dept 1940] [granting late claim relief where "as a result of his injuries(,) claimant was unable to consult with counsel for a substantial period of time," and State was not prejudiced by granting of the application], affd 286 NY 620 [1941]).

Accordingly, it is ordered that, to the extent that movant is seeking permission to file a late claim under Court of Claims Act § 10 (6), that branch of motion No. M-97689 is granted; and it is further ordered that, within 45 days of the date of filing of this decision and order, movant shall serve and file with the office of the Clerk of the Court the proposed claim, naming the State of New York as the only defendant, and ensuring compliance with the requirements of Court of Claims Act §§ 11 and 11-a, as well as the Uniform Rules for the Court of Claims; and ordered that motion No. M-97689 is otherwise denied in all respects.