Opinion
# 2018-044-565 Claim No. 131550 Motion Nos. M-92555
10-25-2018
CHRISTOPHER GUISEPPONE v. THE STATE OF NEW YORK
BELLUCK & FOX, LLP BY: Thomas J. Schiro, Esq., of counsel HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General
Synopsis
Initial claim for injuries incurred when using a circular saw in a college carpentry class dismissed as untimely. Motion for permission to late file denied without prejudice due to failure to set forth sufficient allegations to establish that defendant's conduct was negligent under the circumstances.
Case information
| UID: | 2018-044-565 |
| Claimant(s): | CHRISTOPHER GUISEPPONE |
| Claimant short name: | GUISEPPONE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131550 |
| Motion number(s): | M-92555, M-92579 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | BELLUCK & FOX, LLP BY: Thomas J. Schiro, Esq., of counsel |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 25, 2018 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed Claim No. 131550 to recover for personal injuries allegedly received when he was a student at the State University of New York at Delhi. Claimant moves "pursuant to Court of Claims Act Section 10 (6) deeming the Notice of Intention to File a Claim served on April 18, 2018 and April 20, 2018 to be timely served; or in the alternative . . . permitting claimant . . . to file a late claim nunc pro tunc" (Motion No. M-92555). Defendant opposes the motion and separately moves to dismiss Claim No. 131550 as untimely (Motion No. M-92579). Claimant and defendant both submit reply papers to the respective motions.
Notice of Motion filed July 16, 2018.
The Court notes that throughout claimant's papers, counsel often uses Notice of Intention, Claim, and Notice of Claim, interchangeably. Counsel is apparently confusing the terminology and procedures of the General Municipal Law governing actions against municipalities (where the service of a "Notice of Claim" is often a condition precedent to maintaining an action) with the Court of Claims Act governing claims against the State (where the timely service of a notice of intention extends the time in which to file and serve a claim which is necessary to invoke the Court's jurisdiction).
Before addressing the merits of the motions, some background information is necessary. On April 18, 2018, claimant served defendant with a notice of intention to file a claim alleging that on December 1, 2017, he was injured when the circular power saw he was using during a carpentry class "kicked back." Claimant states that he suffered tendon lacerations to his left index, middle, and ring fingers. On June 8, 2018, claimant filed Claim No. 131550 alleging that he suffered serious, permanent injuries (without specifying what they were) due to defendant's negligent ownership, maintenance, and supervision of the school and equipment; failing to provide adequately trained staff to oversee and supervise the class, and to allow the premises to remain in a dangerous condition.
This service occurred at the Attorney General's Manhattan Office (Affirmation of Thomas J. Schiro, dated Aug. 28, 2018, in Opposition to Motion No. M-92579, ¶ 5). Counsel for claimant indicates that service of a notice of intention was also made on the Attorney General's Albany Office on April 20, 2018 (id.).
Id., Exhibit B at 1.
As it is potentially dispositive of this claim, the Court will initially address defendant's Motion No. M-92579. In an action to recover damages for personal injuries - whether caused by the intentional or unintentional (negligent) conduct of an officer or employee of the State - a claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3], [3-b]). If a notice of intention is timely served, the time in which to file and serve a claim asserting a cause of action for negligence as in this instance is extended to two years after accrual (Court of Claims Act § 10 [3]).
Claimant's cause of action accrued on December 1, 2017. In order to be timely, a notice of intention must have been served or a claim must have been filed and served by March 1, 2018. The notice of intention served on April 18, 2018 is clearly untimely and did not extend the time in which to file and serve the claim. Accordingly, the claim filed on June 8, 2018 and served on June 12, 2018 is also untimely. Claimant's failure to timely serve a notice of intention, or to timely file and serve a claim, deprives the Court of subject matter jurisdiction (see Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Tooks v State of New York, 40 AD3d 1347, 1348 [3d Dept 2007], lv denied 9 NY3d 814 [2007]). Accordingly, defendant's Motion No. M-92579 is granted and Claim No. 131550 is dismissed in its entirety.
The Court will now address claimant's Motion No. M-92555. As set forth previously herein, claimant has denominated this application as one to deem the notice of intention as timely served. While Court of Claims Act § 10 (6) sets forth the procedure whereby a movant may request permission from the Court to serve and file a late claim, there is no such equivalent provision whereby a proposed claimant might seek permission to serve a late notice of intention. Because the notice of intention was not timely served, this Court lacks subject matter jurisdiction and cannot deem it timely.
However, in the alternative, claimant requests that the Court grant him permission to file and serve a late claim, nunc pro tunc, and the Court will treat Motion No. M-92555 for late claim relief and conduct the appropriate analysis under Court of Claims Act § 10 (6). , As an initial matter, Court of Claims Act § 10 (6) requires that a copy of the proposed claim containing all of the information set forth in Court of Claims Act § 11 accompany a motion for leave to file a late claim. Although claimant has not submitted a proposed claim, he has attached a copy of the untimely served notice of intention which the Court will treat and hereinafter refer to as the proposed claim.
The Court notes that consistent with his use of terminology relating to actions governed by General Municipal Law Article 4, claimant has cited numerous cases in support of his request for late claim relief which were resolved using the standards for serving a late notice of claim rather than cases discussing late claim applications pursuant to Court of Claims Act § 10 (6).
As set forth previously herein, Court of Claims Act § 10 (6) authorizes a potential claimant to request permission from the Court to serve and file a late claim. However, such permission is prospective and because the failure to timely file and serve Claim No. 131550 was jurisdictional in nature (see Lichtenstein, 93 NY2d at 913; Tooks, 40 AD3d at 1348), the Court is without authority to award late claim relief nunc pro tunc and essentially revive the untimely Claim No. 131550 (see Smith v State of New York, 53 AD2d 756, 758 [3d Dept 1976], affd 41 NY2d 1063 [1977]; see also Francisco v State of New York, UID No. 2018-040-018 [Ct Cl, McCarthy, J., Feb. 9, 2018]).
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act
§ 10 [6]). Claimant asserts that he was injured on December 1, 2017. The applicable statute of limitations for a negligence cause of action is three years from the date of accrual (see CPLR 214 [5]). Accordingly, this motion, mailed on July 13, 2018 is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
The Court notes that claimant's counsel's affidavit of service attached to the motion papers actually states that a notice of medical malpractice was served upon the Attorney General's Manhattan and Albany Offices. Presumably, this is a typographical error as defendant did receive and respond to Motion No. M-92555.
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act
§ 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and
6) claimant has any other available remedy.
Claimant indicates that because of his injuries, he was unable to complete his classes or take exams in Fall 2017 and was required to take his exams in January 2018 along with his Spring 2018 classes. Claimant states that it was also necessary for him to attend numerous medical appointments. Claimant contends that because of these demands on his time, he was unable to meet with counsel or file and serve the claim within the 90-day period set forth in the statute. Defendant does not dispute the extent of claimant's injuries or treatment. However, notwithstanding that claimant may have been busy with school and medical appointments, he has failed to provide any medical evidence that he was mentally or physically incapacitated to such an extent that he could not timely serve a notice of intention to file a claim or to timely file and serve a claim (see generally Matter of Isereau v Brushton-Moira School Dist., 6 AD3d 1004 [3d Dept 2004]; Elting v State of New York, 8 AD2d 640 [3d Dept 1959]). In fact, claimant has admitted being able to attend school in January 2018. Moreover, claimant's ignorance of the requirements of the Court of Claims Act and his initial lack of legal representation are not adequate excuses for his delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Matter of E.K. v State of New York, 235 AD2d 540, 541 [2d Dept 1997], lv denied 89 NY2d 815 [1997]; Plate v State of New York, 92 Misc 2d 1033 [Ct Cl 1978]). Accordingly, this factor weighs against him.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. For the purposes of this motion, defendant concedes that it had notice of the essential facts constituting the claim as well as an opportunity to investigate and that there is no prejudice to the State. Thus, these three factors weigh in favor of claimant.
Affirmation of Assistant Attorney General (AAG) Mark Sweeney, dated Sept. 5, 2018, in Opposition to Motion No. M-92555, ¶ 15.
Another factor to be considered is whether claimant has any other available remedy. Claimant is seeking damages for personal injuries allegedly received when he was injured while on the campus of a State University. The Court of Claims is the proper forum for this action. This factor also weighs in favor of movant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992]).
Defendant contends that claimant has failed to identify the dangerous condition existing in the carpentry lab, and has provided only other conclusory allegations of negligence. Conversely, claimant argues that defendant failed to provide him with proper protective clothing and equipment. Claimant further alleges that his instructors did not teach proper safety measures and failed to monitor or supervise the students' work. Claimant also asserts that he was provided with a dull blade and was not given a suitable piece of wood to cut.
With respect to claimant's allegations that a dangerous condition existed on the campus, the State, as a landowner, has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]; see also Clairmont v State of New York, 277 AD2d 767 [3d Dept 2000], lv denied 96 NY2d 704 [2001]). To prevail on this claim, claimant must establish by a preponderance of the credible evidence that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that movant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]). As claimant's allegations pertain to defendant's negligence in properly instructing him in the use of the saw or having insufficient staffing, claimant must demonstrate that defendant's breach of a duty owed to claimant was the proximate cause of his injuries (Murray v New York City Hous. Auth., 269 AD2d 288, 289 [1st Dept 2000]).
Facts stated in a motion for leave to file a late claim against the State are normally deemed true for purpose of the motion. However, this rule is only applicable where such statements are made by an individual with first-hand knowledge of the facts in question (Jolley v State of New York, 106 Misc 2d 550, 551-552 [Ct Cl 1980]). Because the proposed claim (notice of intention) is verified by counsel rather claimant, the Court will not consider the allegations contained in that document. Nevertheless, claimant has submitted a sworn petition in support of this motion and the Court will address the issue of merit based upon the contents of that document.
The Court notes that the previously dismissed Claim No. 131550 also suffers from the same deficiency and cannot be considered as a proposed claim on this motion. In any event, as defendant aptly notes in its motion to dismiss, Claim No. 131550 fails to include any particularization of defendant's allegedly negligent conduct in regard to the incident and does not meet the requirements of Court of Claims Act § 11 (see e.g. Lepkowski v State of New York, 1 NY3d 201, 207 [2003]; Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]).
Claimant alleges that during his carpentry class, he was cutting a piece of wood - which was being held by a fellow classmate - with a circular saw. He states that when the saw blade stopped in the middle of the wood, he removed the saw, unplugged it and checked it for any problem. Claimant indicates that he then began to cut the wood again when the saw "kicked back" and struck his left hand and fingers. Claimant notes that his instructor was across the classroom at the time of the incident. Campus police arrived and completed an incident report, and claimant was then transported to the hospital by ambulance. Claimant asserts that he was diagnosed with left hand tendon lacerations of the left index, long, and ring fingers. He underwent surgery, including a nerve graft on his middle finger. Claimant alleges that he still does not have movement or feeling in his fingers and may need additional surgery.
The Court finds that the allegations contained in claimant's petition are insufficient to establish either the existence of a dangerous condition or that defendant breached any other duty of care owed to claimant. Further, there are no assertions from which it can be inferred that defendant was negligent in instructing the students. Moreover, claimant's statements that defendant was negligent in failing to supervise the students or to provide unidentified protective clothing or equipment, as well as having provided claimant with a dull blade are conclusory in nature. The mere occurrence of an accident is insufficient to infer negligence (see Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]; see also Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). Keeping in mind that claimant has a heavier burden to set forth a meritorious cause of action on this motion for late claim relief, the Court finds that claimant has not set forth sufficient allegations to establish that defendant's conduct was negligent under the circumstances. Further, there are no allegations that said negligence was a proximate cause of claimant's injuries. Accordingly, claimant has failed to establish even the initial appearance of merit and this crucial factor weighs against him.
To the extent that claimant may be alleging that the manner in which the board being cut was held (i.e. by a fellow student) constituted a dangerous condition, there is no evidence that such conduct was unreasonable. Although claimant's counsel indicates that he discussed safety violations, unsafe conditions, and negligent teaching/training with a woodworking machinery and safety expert, counsel has not submitted detailed information pertaining to these issues such as an expert affidavit. --------
Although four of the six statutory factors weigh in favor of movant, the crucial issue of merit weighs against him. "[W]here 'the excuse offered for the delay is inadequate and the proposed claim is of questionable merit' " (Matter of Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006], quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]), denial of a late claim application is appropriate (see Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). Accordingly, claimant's Motion No. M-92555 is denied, without prejudice.
In conclusion, defendant's Motion No. M-92579 is granted and Claim No. 131550 is dismissed in its entirety as untimely. Claimant's Motion No. M-92555 for permission to file and serve a late claim is denied, without prejudice to making another motion for such relief upon proper papers.
October 25, 2018
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion and defendant's motion: 1) Notice of Motion (Motion No. M-92555) filed July 16, 2018; Affirmation of Thomas J. Schiro, Esq., dated July 12, 2018, and attached exhibits. 2) Notice of Motion (Motion No. M-92579) filed July 13, 2018; Affirmation of Mark Sweeney, AAG, dated July 13, 2018, and attached exhibit. 3) Affirmation of Thomas J. Schiro, Esq., in Opposition to Motion No. M-92579, dated August 28, 2018, and attached exhibits. 4) Affirmation of Mark Sweeney, AAG., in Opposition to Motion No. M-92555, dated September 5, 2018. 5) Reply Affirmation of Thomas J. Schiro, Esq., dated September 12, 2018. Filed Papers: Claim filed June 8, 2018.