Opinion
# 2021-059-003 Claim No. 128942 Motion No. M-95904 Motion No. M-95939
01-19-2021
BARBARA AYERS v. THE STATE OF NEW YORK
GRUENBERG KELLY DELLA By: Zachary M. Beriloff, Esq. HON. LETITIA JAMES, ATTORNEY GENERAL By: Alex J. Fruendlich, Assistant Attorney General
Synopsis
Case information
| UID: | 2021-059-003 |
| Claimant(s): | BARBARA AYERS |
| Claimant short name: | AYERS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128942 |
| Motion number(s): | M-95904 M-95939 |
| Cross-motion number(s): | |
| Judge: | MAUREEN T. LICCIONE |
| Claimant's attorney: | GRUENBERG KELLY DELLA By: Zachary M. Beriloff, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL By: Alex J. Fruendlich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 19, 2021 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This is a claim by Barbara Ayers (Ayers or Claimant) against the State of New York (State or Defendant) alleging that she sustained personal injuries due to the State's negligence when a bench on which she had been sitting in the third floor hallway of Cromarty Court building (Cromarty Building) in Riverhead, New York collapsed. At the conclusion of discovery and upon the filing of a note of issue and statement of readiness, Claimant moved for a trial preference due to her age pursuant to CPLR 3403 (a) (4) (Motion No. M-95904). The State then moved for summary judgment (Motion No. M-95939): (1) pursuant to Court of Claims Act (CCA) § 11 (b) alleging that this Court lacks subject matter jurisdiction over the claim because it failed to state Ayers' injuries and the nature of her claims; (2) under CPLR 3212 and Judiciary Law §§ 39 and 39-a because the State did not own the bench, had no obligation to maintain or inspect it, and because the State did not create the allegedly dangerous condition; and (3) that Claimant has not stated a claim for negligent training and hiring. Claimant opposed the motion arguing that material issues of fact remain as to whether Defendant owned the bench, whether the State had constructive notice of the defective bench and whether the State created the dangerous condition which resulted in Claimant's alleged injuries. Claimant did not oppose that branch of Defendant's motion which sought summary judgment to dismiss the negligent hiring and supervision claim. Both the motions for a preference and for summary judgment are decided herein.
Defendant's Summary Judgment Motion
Since an order determining Defendant's summary judgment motion could obviate the need for a trial preference, it is decided first. Summary judgment is a drastic remedy and may only be granted in the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Vega v Restani Const. Corp., 18 NY3d 499 [2012]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence submitted in support of a motion for summary judgment must be viewed in the light most favorable to the non-moving party, giving that party the benefit of any favorable inference (see Open Door Foods, LLC v Pasta Machines, Inc., 136 AD3d 1002 [2d Dept 2016]).
Subject Matter Jurisdiction
CCA § 11 (b) provides that a "claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained... ." The purpose of the § 11 (b) requirement that a claimant allege the "nature" of the claim is "to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances" (Lepkowski v State of New York, 1 NY3d 201, 207 [2003] quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). A claim need not be pled with "absolute exactness" (Santos v State of New York, 291 AD2d 851, 851 [4th Dept 2002]; Wharton v City Univ of NY, 287 AD2d 559, 559 [2d Dept 2001]), but must allege the required elements with "sufficient definiteness to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances" (Cobin v State of New York, 234 AD2d 498, 499 [2d Dept 1996], lv dismissed 90 NY2d 925 [1997]; see also Rodriguez v State of New York, 8 AD3d 647, 647 [2d Dept 2004] ["The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State"]). "This is true even accepting that it may have been poorly drafted" (Ferrugia v State of New York, 237 AD2d 858, 859 [3d Dept 1997]).
Regarding the "items of damage or injuries claimed to have been sustained," the § 11 (b) statutory "requirement that a claimant allege itemized injuries . . . [is] jurisdictional" and the failure to comply with this statutory requirement deprives the Court of subject matter jurisdiction (Sanchez v State, 40 AD3d 450, 451 [1st Dep't 2007]). Here, the State alleges that the claim fails to comply with § 11 (b) because it does not indicate Claimant's "items of damage or injuries." Specifically, the State contends that since the claim lists Claimant's injured body parts and psychological injuries (i.e., "injuries to the right shoulder, right leg, right side/hip, head neck [and] back, emotional distress and psychological injuries"), but does not name the injuries, this Court lacks subject matter jurisdiction.
The manner in which the claim alleges the "nature" and "items" of Claimant's damages has been held to be sufficient to satisfy § 11 (b) (see Donahue v State, 174 AD3d 1549, 1551 [4th Dept 2019] [allegations in claim of injuries to claimant's "shoulder, bicep, and elbow" sufficient for purposes of § 11 [b]); Demonstoy v State, 130 AD3d 1337, 1338 [3d Dept 2015] [allegation of "amputating injury" to middle finger of left hand in claim sufficient to confer jurisdiction]).
Moreover, the cases cited to support the contention that the Court lacks subject matter jurisdiction are distinguishable (e.g., Callahan v State of New York, UID No. 2019-045-025, [Ct Cl., Lopez-Summa, J., Sept. 20, 2019] [motion for leave to file a late claim denied where proposed no fault motor vehicle accident claim did not allege sufficient details to meet serious injury threshold under Insurance Law § 5102 (d) and did not allege the time of the accident]; Cook v State of New York, UID No. 2002-015-215, Collins, J., [Ct Cl, January 24, 2002] [claim dismissed where it failed to specify date on which cause of action allegedly accrued or the manner in which the State was negligent and merely asserted "pain, suffering and mental anguish" so that it was impossible to determine the nature of the claimant's injury]; Oropeza-Parra v State of New York, Motion No. M-93243 [Ct Cl, Rodriguez-Morick, J., April 15, 2019] [motion for leave to file a late claim denied where allegations too vague to determine entities alleged to be at fault and injury not specified as to left or right shoulder]; Caggiano v State of New York, UID No. 2007-041-024 [Ct Cl, Milano, J., June 5, 2007] [claim did not indicate "items of damages or injuries" but generalized that the claimant suffered "severe, serious and permanent debilitating injuries, mental anguish, pain and suffering, loss of enjoyment of life, economic and pecuniary loss, and other damages"]; Oakland v State of New York, UID No. 2017-045-050 [Ct Cl, Lopez-Summa, J., Dec 20, 2017] [motion for leave to file a late claim denied where proposed claim failed to allege the time when accident occurred]).
Satisfying the "meritorious" standard for leave to file a late claim pursuant to CCA 10 (6) "clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely"(Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1, 11 [Ct Cl 1977]). Thus, late claim motion decisions in Callahan, Oropeza-Parra and Oakland are distinguishable for this additional reason.
Accordingly, this Court has subject matter jurisdiction and the prong of the State's summary judgment motion alleging otherwise is denied.
Negligence Claims
The second branch of Defendant's summary judgment motion asserts that the State is entitled to judgment as a matter of law because the statutory and contractual framework governing the operation of New York trial courts effectively exempts the State from all and, in the alternative, that it has submitted sufficient evidence to eliminate any material issues of fact. Pursuant to the Unified Court Budget Act of 1976 (Judiciary Law § 39), the State assumed control over the trial courts throughout the State by creation of the New York State Unified Court System (UCS). Previously these courts had been administered by the numerous political subdivisions throughout the State, including Suffolk County. Under Section 39, however, localities retained responsibility to maintain all the court facilities in their jurisdictions which they had previously financed and furnished (see Matter of Drew v Schenectady Cty, 88 NY2d 242 [1996]; Gaviria v State of New York, UID No. 2016-049-028 [Ct Cl, Weinstein, J., June 23, 2016). More particularly, Judiciary Law § 39 (3) (a) provides that "[n]otwithstanding any other provision of law, all goods, services and facilities presently furnished and paid for by any political subdivision to the courts and court-related agencies . . . shall continue to be furnished and paid for by the political subdivision. Each political subdivision shall also be responsible for supplying such additional facilities suitable and sufficient for the transaction of business as may become needed after [August 5, 1976]" (Drew v Schenectady Cty at 246). In other words, local governments such as Suffolk County (County) provide for the facilities in which the New York State UCS trial courts are housed. As described by analogy in the deposition testimony of State witnesses, the UCS essentially is a tenant in the Cromarty Building, which is owned by the County (NYSCEF Doc No. 112, at 11:3-13; NYSCEF Doc No. 114, at 12:6-13).
Judiciary Law § 39-b (2) indicates that the UCS is responsible for the cleaning and minor repairs to the court facilities provided by the various local governments. Subsection 39-b (3), however, requires the State to enter into contracts with local governments pursuant to which the local governments are to provide for cleaning and minor repair services at the court facilities. In turn, the localities are to be reimbursed by the State for those services. In accordance with Judiciary Law § 39-b (3), the County and the UCS entered into a contract (Contract) concerning cleaning of the court facilities in Suffolk County by the County and outlining the State's reimbursement to the County for this work (NYCEF Doc No. 123). Although the Contract contained attachments with payment schedules for cleaning, maintenance and replacement of various items, there was no schedule mentioning furniture replacement, maintenance or repair or the reimbursement rates for these items (id.).
The deposition testimony indicated that County and the UCS have operated under the Contract such that the County provides custodial services and, in general, supplies furniture for some public areas at the time the court buildings or portions of them are constructed or renovated as County capital projects (NYSCEF Doc No. 114 at 18-19; NYSCEF Doc No. 112 at 14:10-16). On the other hand, the UCS provides "tenant services" and always supplies the furniture and equipment in the offices, including judges' chambers (NYSCEF Doc No. 114 at 18-19). In addition, according to the testimony of Louise Tortora, a UCS employee who is the facilities coordinator for the court facilities in Suffolk County and is the UCS liaison to the County, after the County supplies furniture in public areas as part of an initial capital project, the County no longer "takes responsibility" and it is the UCS which replaces the furniture as the need develops (id., at 46-47):
Initially, when [the County does] the renovation work or the addition they have that money set aside for furniture. Once they put that in place
they don't feel they're responsible for anything. Once we have to replace
them they're not going to foot the bill for them and it goes into my
tenant work . . . [a]ctually [the County] order[s] it I pay for it.
(id, at 46:21-25, at 47:1-8).
The deposition testimony indicated that sometime between 2008 and 2010 UCS employees directed that benches located in the central jury room be moved from there to the public hallways and that UCS employees moved them (NYSCEF Doc No. 114 at 35:3-25, 36-41; NYSCEF Doc No. 109 at 23:21-25, 24:2-5). Prior to the time USC employees moved the benches they were found to be in poor condition as reflected in an inventory print out dated May 21, 2008 which had been prepared by the office of the Commissioner of Jurors, a UCS official (NYCEF Doc No. 149 at 9-10). The practice was for the Commissioner of Jurors to report the condition of furniture to the UCS (NYSCEF Doc No. 109 at 44:13-16).
The bench upon which Claimant was sitting when it collapsed was the type of bench which was moved from the central jury room to third floor hallway by the UCS (NYSCEF Doc No. 114 at 44: 11-19). Notably, after Claimant's accident, the remaining benches in the third floor hallway and throughout the Cromarty Building hallways were replaced by the UCS and not the County (id., at 45:21-25, 46:1-19). Earlier, when the benches were moved from the central jury room in 2008-2010, the new seating for there was provided by the UCS (NYSCEF Doc No. 114 at 39).
With respect to ownership of the benches, the County's bid specifications for the Cromarty Building addition in the early 1990's indicated that the County's contractor was to supply furnishings for the central jury room (NYSCEF Doc No. 120, NYSCEF Doc No. 118 at 18:5, 16-20, 23:19-25, 24:1-4). In addition, Thomas Lorito, a retired USC employee who had been the USC chief court officer and the district executive in Suffolk County, testified in his deposition that the benches had been purchased by the County at the time the central jury room addition was constructed (NYSCEF Doc No. 109 at 20-21, 22:1-14). On the other hand, there were "property of NY State" bar coded asset tags on identical benches (NYSCEF Doc No. 113 at 22:11-25, 23). Further, as mentioned above, the benches were listed on an inventory provided by the Commissioner of Jurors (NYSCEF Doc No. 109 at 42:9, 43-45) and that inventory appears to have resulted from scanning bar codes (id.). Although there are no photographs of the asset tag on the bench in question, the deposition testimony of USC Deputy District Executive John McGinn was that the UCS learned that the bench in question had such a tag affixed to it (NYSCEF Doc No. 112 at 45:3-8). The presence of the tags presents issues of fact either of the State's ownership, or, at a minimum, control of the benches in the public hallways.
UCS Major Smaldone, a court officer who had been in charge of public safety at the Cromarty Building at the time of the alleged accident and who had worked in public safety there in various ranks since 2004, testified in his deposition that chairs breaking in the Cromarty Building were a "common occurrence" (NYSCEF Doc No. 113 at 15) and that he had "seen similar incidents . . . regarding those specific chairs" (id., at 10: 6-25). When chairs collapse, UCS court officers respond to the scene (id., at 15). Major Smaldone further testified that when he became aware of a broken chair he would typically notify the chief clerk, another State UCS employee (id., at 17-18). The chairs would be removed by UCS court officers along with County maintenance workers (id., at 12:16-23). Over the years, Major Smaldone was never aware of any instance in which County workers removed the chairs on their own (id., at 51-52).
To establish a prima facie case of negligence in a premises liability claim, a claimant must demonstrate by a preponderance of the credible evidence that: (1) defendant owed claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) defendant either created the dangerous condition, or had actual or constructive notice and failed to alleviate the condition within a reasonable time; and (4) the condition was a proximate cause of the events resulting in claimant's injuries (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept. 2011]). "[C]laimant has the burden of establishing a dangerous or defective condition that defendant created or had knowledge (actual or constructive) of, and that such condition was a cause of the accident" (Gonzalez v State of New York, 60 AD3d 1193, 1194 [3d Dept. 2009], lv denied 13 NY3d 712 [2009] see also Rios v State of New York, UID No. 2016-041-510 [Ct Cl, Milano, J., Nov. 1, 2016). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986] [citations omitted]. A claimant must "demonstrate that defendant either created the condition by its own affirmative act, was aware of a specific condition yet failed to correct it, or was aware of an ongoing and recurring unsafe condition which regularly went unaddressed" (Kivlan v Dake Bros., 255 AD2d 782, 783 [3d Dept. 1998]).
It is well settled that "[g]enerally, liability for an allegedly defective condition on property must be based on occupancy, ownership, control or special use of the premises" (Quick v G.G.'s Pizza & Pasta, Inc., 53 AD3d 535, 536, [2d Dept 2008]; see Melendez v Kawasaki Rail Car, Inc., 110 AD3d 965, 966 [2d Dept 2013]) and "the existence of one or more of these elements is sufficient to give rise to a duty to exercise reasonable care" (Quick v G.G.'s Pizza & Pasta, Inc. at 536).
Here, Defendant has not met its initial burden to make a prima facie showing that it neither owned or controlled the bench, created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598 [2d Dept 2008]. Moreover, there are questions of fact as to whether the State either owned the bench in question or, at a minimum, exercised control over it.
The facts here are distinguishable from those in Reid v State of New York, UID No. 2020-045-041 [Ct Cl, Lopez-Summa, J., July 21, 2020]. There, a claimant alleged to have been electrocuted by a light switch in a courthouse owned by Nassau County and operated by the UCS. In that case, however, the State had no duty of care, since the light switch was part of the county's building. Furthermore, there was no indication that the county relinquished ownership or control, or questions of fact as to whether the UCS owned the light switch or exercised control by moving it or otherwise.
Accordingly, the Court cannot conclude as a matter of law that Defendant had no duty of care, did not create the dangerous condition, or had no notice of the condition which it failed to alleviate. Accordingly, the branch of Defendant's motion seeking summary judgment as to its liability for Claimant's injuries is denied.
Negligent training and hiring
Since Claimant has not opposed the branch of Defendant's motion which sought summary judgment to dismiss claims of negligent training and hiring, that branch of Defendant's motion is granted.
Claimant's Motion for a Trial Preference
Ayers is seventy years old. Pursuant to CPLR 3403 (a) (4) her age entitles her to a trial preference. Accordingly, the motion requesting a trial preference is granted.
Therefore, it is ORDERED:
(1) Defendant's Motion No. M-95939 for summary judgment is denied in part and granted in part such that (a) the branch of the motion seeking dismissal of the claim for lack of subject matter jurisdiction is denied; (b) the branch of the motion seeking to dismiss the claims asserting liability against the State for negligence is denied; and (c) the branch seeking dismissal of the claims for negligent supervision and training is granted; and
(2) Claimant's Motion No. M-95904 for a trial preference is granted in full.
MAUREEN T. LICCIONE
Judge of the Court of Claims
Papers Considered:
1. NYSCEF Document Nos. 97-102, 104-129, 133-149.
January 19, 2021
Hauppauge , New York
MAUREEN T. LICCIONE
Judge of the Court of Claims