Opinion
# 2014-018-545 Claim No. NONE Motion No. M-85640
11-17-2014
HELEN D. WINTER v. STATE OF NEW YORK
THE MATHEWS LAW FIRM By: Daniel F. Mathews, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General
Synopsis
Permission to file a late claim is denied.
Case information
| UID: | 2014-018-545 |
| Claimant(s): | HELEN D. WINTER |
| Claimant short name: | WINTER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-85640 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | THE MATHEWS LAW FIRM By: Daniel F. Mathews, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 17, 2014 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant brings a late claim application pursuant to Court of Claims Act section 10 (6).
Defendant opposes the motion.
The proposed claim seeks damages from injuries Movant suffered when she fell on a broken, uneven, and defective sidewalk on April 13, 2014, at approximately 4:45 p.m. The portion of the sidewalk where movant fell is adjacent to the parking area of a property known as 800 to 814 East Genesee Street within the City of Syracuse. Movant provides a further description of the location with an approximate latitude of 43 2' 49.3100" N., and approximate longitude of 76 8' 19.8512" W., located on the "south side of East Genesee Street, between Irving Avenue and Foreman Avenue, on the sidewalk which appears to have been recently constructed as part of the Connective Corridor Project." From the fall, Movant suffered a fractured right wrist, a fractured small left toe, pain, swelling, and bruising.
Proposed Notice of Claim ¶ 4.
Court of Claims Act section 10 (6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act section 10 to make an application to the Court for permission to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10 [6]). Claimant's motion is timely (Court of Claims Act § 10 [6]; CPLR § 214 [5]).
In deliberating on Movant's application, the Court considers the six factors listed in Court of Claims Act section 10 (6) and no one factor is determinative (Bay Terrace Coop. Section IV Inc., v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). Instead, it is a balancing of all the factors which may warrant the granting of the application to file and serve a late claim.
The first factor is whether the delay in filing the claim is excusable. Movant argues that after her fall, based upon her attorney's investigation, a notice of claim was sent to the City of Syracuse, and a contact letter was sent to Syracuse University. This was based upon the fact that the sidewalk was within the City of Syracuse, and Syracuse University was the lead agency in contracting for the work to develop the "Connective Corridor Project." Movant's counsel thereafter received a letter from Syracuse University's claims administrator indicating that Syracuse University did not own or maintain the sidewalk where Movant fell. Based upon records showing that the State owns the property adjacent to the sidewalk, Movant now seeks to sue the State. Movant promptly served a notice of claim on the City of Syracuse and contacted Syracuse University. Movant's counsel asserts that as soon as he learned that Syracuse University had no ownership or control of the sidewalk in question, he filed this motion, only five months after Movant fell. Diligent pursuit of her claim against the State, upon learning of its potential ownership or control of the sidewalk, the Court finds renders this brief delay a reasonable excuse. (see Matter of Harris v Dormitory Auth. of State of N. Y., 168 AD2d 560 [2d Dept 1990]; Weaver v State of New York, 112 AD2d 416 [2d Dept 1985]; Matter of Gross v State of New York, 9 AD2d 594 [3d Dept 1959]; Farnham v State of New York, 195 Misc 380 [Ct Cl 1949]).
The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. These first two factors weigh against Movant's application. Movant asserts that the State was on notice of the condition of the sidewalk because it knew or should have known of the construction of the sidewalk on its property. Movant further asserts that Defendant will suffer no prejudice if this late filing is permitted because the statutory period only recently expired and this motion was made promptly.
Defendant denies any notice of Movant's fall, and because of this untimely notice asserts the State was denied the opportunity to investigate or interview witnesses. It is clear the State did not have notice of the facts underlying this claim or an ability to investigate this matter until this motion was served. However, in assessing whether the State will suffer prejudice if this application is granted, it bears to keep in mind that even a timely claim can be filed 90 days after the occurrence giving rise to the claim, or in other words, basically, three months can pass without the State having notice of the underlying facts yet, thereafter, have to investigate and defend a timely claim. In this case, only two additional months passed after the expiration of the 90 days. Defendant has not shown how these additional two months have substantially prejudiced its ability to conduct an investigation of the facts giving rise to this claim. The Court finds this brief delay should not substantially prejudice the State's ability to investigate or defend this claim and this factor weighs in favor of granting the application.
The next factor is whether the claim appears to be meritorious. Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1,11 [Ct Cl 1977]). It is Movant's claim that she fell on a public sidewalk in front of State-owned buildings in the City of Syracuse. Under the common law, "liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner." (Hausser v Giunta, 88 NY2d 449, 452-453 [1996]). There are exceptions to this general rule, when the sidewalk was constructed in a "special manner for the benefit of the abutting" landowner or that landowner has acted negligently in affirmatively constructing or repairing the sidewalk or otherwise creating the dangerous condition, or "a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty." (Id., at 453; Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 520 [2008]; Schroeck v Gies, 110 AD3d 1497 [4th Dept 2013]). Movant asserts that the State may be liable for the condition of this sidewalk as an owner or because it maintained, operated, managed, leased, and controlled the sidewalk. In her attorney's reply affirmation, he asserts that even if the City of Syracuse is the actual owner of the sidewalk at issue, City of Syracuse Code section 18-27 places the burden on adjoining landowners to keep the sidewalks in good repair and maintained properly. A City of Syracuse Department of Public Works website also reflects that "[r]epair and upkeep of sidewalks are the responsibility of each property owner."
Mathews' Reply Affirmation, ¶ 11.
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Defendant attaches the affidavit of Kathleen Herron, Deputy Director for Administration for Hutchings Psychiatric Center (Hutchings), in which she states that the sidewalk in the 800 block of East Genesee Street is a public sidewalk, and Hutchings does not make special use of the sidewalk and has not made any modifications or performed any work to the sidewalk. Defendant also argues that the exception to imposing liability on the municipality for defects in public sidewalks where an ordinance or statute specifically imposes liability on the adjoining landowner is also not applicable here.
As set forth above, Movant's burden on a motion for permission to file a late claim is slight in that all that must be shown is potential merit of a claim that is not patently groundless, frivolous or legally defective. Factual issues are viewed in favor of the movant and left, more appropriately, to be determined at trial or after discovery is complete (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]; Deutsch v City University of New York, UID No. 2007-028-584 [Ct Cl, Sise, P. J., Dec. 21, 2007]). Nonetheless, if it is shown that the proposed claim lacks a legal basis, it would be futile to allow a proposed claim to be filed. Here, case law establishes that a landowner, or in this case the State, may only be held liable for the condition of a public sidewalk if falls into one of the three exceptions: it has made a special use of the public sidewalk, it has made modifications to or performed some work on the sidewalk, or there is a statute or ordinance which specifically imposes the duty for the sidewalk on the abutting landowner and imposes liability for the breach of that duty.
Although the Code of the City of Syracuse section 18-27 Movant cites imposes a duty upon the adjoining landowner to keep the sidewalks abutting their property in good repair and in a safe condition, and to remove and clean all snow and ice other obstructions, it does not impose liability upon the landowner. Nothing Movant cites imposes such liability upon the landowner. Nor is there any indication that the State did any work, repair, or maintenance to this sidewalk, which it unequivocally denies. Based upon the submissions, and the absence of any legislative imposition of liability upon abutting landowners, it does not appear that the proposed claim is meritorious. This factor weighs against granting Movant's application.
The final factor is whether the proposed claimant has any other remedy available. Since the public sidewalk is in the City of Syracuse, which has already been sued, it appears that it may bear responsibility for this portion of the sidewalk. Therefore, Movant has another potential remedy.
Accordingly, based upon the foregoing, Movant's application is DENIED.
November 17, 2014
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affidavit of Daniel F. Mathews, Esquire, in support, sworn to August 20, 2014, with attachments thereto.
3) Affirmation in opposition of Edward F. McArdle, Esquire, Assistant Attorney General, with exhibits attached thereto.
4) Reply affirmation of Daniel F. Matthews, Esquire, in support, with exhibits attached thereto.