Opinion
# 2017-032-006 Claim No. None Motion No. M-89289
02-27-2017
CRYSTAL S. BARROW v. THE STATE OF NEW YORK, BROOKLYN BRIDGE PARK DEVELOPMENT CORPORATION AND NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORPORATION
Rosenberg, Minc, Falkoff & Wolff, LLP By: Arthur O. Tisi, Esq. New York State Urban Development Corporation and Brooklyn Bridge Park Development Corporation By: Simon Wynn, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General, Of Counsel
Synopsis
Movant's motion for late claim relief pursuant to Court of Claims Act § 10 (6) is denied insofar as it seeks damages from public benefit corporations, but granted insofar as it seeks damages from the State of New York.
Case information
| UID: | 2017-032-006 |
| Claimant(s): | CRYSTAL S. BARROW |
| Claimant short name: | BARROW |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK, BROOKLYN BRIDGE PARK DEVELOPMENT CORPORATION AND NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORPORATION |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-89289 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Rosenberg, Minc, Falkoff & Wolff, LLP By: Arthur O. Tisi, Esq. |
| Defendant's attorney: | New York State Urban Development Corporation and Brooklyn Bridge Park Development Corporation By: Simon Wynn, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | February 27, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant moves for leave to file and serve a late claim to recover damages from the State of New York, the Brooklyn Bridge Park Development Corporation (hereinafter BBPDC), and the New York State Urban Development Corporation d/b/a Empire State Development Corporation (hereinafter UDC) for personal injuries that she sustained in a slip and fall in Brooklyn Bridge Park (see Court of Claims Act § 10 [6]). Defendants UDC and BBPDC oppose the motion on the ground that the Court of Claims lacks jurisdiction over the matter. For its part, the State opposes the motion on the ground that it does not own, operate, or maintain the property in question.
As reflected in the documents submitted by movant, BBPDC is a subsidiary of UDC, which is a public benefit corporation of the State of New York (see Matter of Brooklyn Bridge Park Legal Defense Fund, Inc. v New York State Urban Dev. Corp., 50 AD3d 1029, 1030 [2d Dept 2008], lv denied 10 NY3d 714 [2008). It is well settled that, "[w]here the State Legislature has decided to confer on the Court of Claims jurisdiction over public authorities, it has done so specifically by statute; the absence of such a provision in the enabling legislation indicates that jurisdiction lies with courts of general jurisdiction" (Gembala v Audobon Assn., 97 AD2d 345, 346 [3d Dept 1983]; see Plath v New York State Olympic Regional Dev. Auth., 304 AD2d 885, 886 [3d Dept 2003]). "Although the UDC, as a public benefit corporation, has many ties to the State, it is not identical to the State and enjoys an independent existence" (Gembala v Audobon Assn., 97 AD2d at 346; see Aramark v State of New York, UID No. 2007-034-508 [Ct Cl, Hudson, J., Jul. 19, 2007]; Rodriguez v New York State Urban Development Corp., UID No. 2004-016-059 [Ct Cl, Marin, J., Sept. 28, 2004]; Aikens v State of New York and the New York State Urban Development Corporation, UID No. 2001-027-558 [Ct Cl, Waldon, J., May 8, 2001]). Notably, the legislation creating the UDC does not confer jurisdiction upon the Court of Claims, and "one provision specifically notes that Supreme Court shall have jurisdiction over any proceeding involving UDC notes or bonds" (Gembala v Audobon Assn., 97 AD2d at 346; see McKinney's Uncons. Laws of N.Y. § 6281-a; see also General Municipal Law § 50-e). Thus, the Court of Claims does not have jurisdiction to hear claims brought against the UDC or its subsidiaries (see Gembala v Audobon Assn., 97 AD2d at 346; Gallegos v State of New York and Dormitory Authority of the State of New York, UID No. 2016-016-032 [Ct Cl, Marin, J., May 17, 2016]; see also Scholer v State of New York, UID No. 2016-045-011 [Ct Cl, Lopez-Summa, J., April 29, 2016]; Court of Claims Act § 9). Such causes of action are more appropriately brought in the Supreme Court of the county in which the authority has its principal office or where it has facilities involved in the action (see CPLR 505 [a]; Gallegos v State of New York and Dormitory Authority of the State of New York, UID No. 2016-016-032 [Ct Cl, Marin, J., May 17, 2016]).
In light of the foregoing, the Court lacks jurisdiction to grant movant late claim relief with respect to all cited defendants except the State of New York. As to the State's liability, movant's proposed claim alleges that, while walking on a path in Brooklyn Bridge Park on the evening of October 3, 2014, she was caused to slip and fall due to the State's failure to remedy certain defects in the walkway and provide adequate lighting on the premises, and that she sustained serious injuries as a result thereof. Because her motion for late claim relief was brought within the three-year statute of limitations applicable to negligence claims under CPLR 214 (5), such relief is left to the discretion of the Court (see Court of Claims Act § 10 [6]; Tartaglione v State of New York, UID No. 2016-016-002 [Ct Cl, Marin, J., Jan. 5, 2016]; compare Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984]). In deciding whether to grant a late claim application, the Court must consider whether: (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the State was substantially prejudiced by the delay; (5) claimant has any other available remedy; and (6) the claim appears to be meritorious (see Court of Claims Act § 10 [6]). While the presence or absence of any one of these factors is not dispositive (see Williams v State of New York, 133 AD3d 1357 [4th Dept 2015]), the last factor is generally the most decisive inasmuch as "'it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion'" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
As to the first factor, movant contends that she did not serve a claim or a notice of intention to file a claim upon the Attorney General within 90 days of her accident because she was not aware that the State owned and/or maintained the premises in question until December 28, 2015. However, "barring very unusual circumstances, it has been held that mistake in the identity of the proper [d]efendant or a failure to ascertain the proper [d]efendant is not an acceptable excuse for delay in commencing an action in this Court" (Wetter v State of New York, UID No. 2013-028-512 [Ct Cl, Sise, P.J., June 17, 2013]; see Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]; Lostracco v the State of New York, New York State Thruway Auth. and New York State Canal Corp., UID No. 2002-031-064 [Ct Cl, Minarik, J., Dec. 12, 2002]; see also Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; compare General Municipal Law § 50- e [5]). Nevertheless, the absence of an excuse for late filing is only one of the factors considered by the Court in reviewing a late claim application and does not necessarily preclude the relief sought here (see generally Williams v State of New York, 133 AD3d at 1357).
The three factors of the State's notice of and opportunity to investigate the essential facts constituting the claim and the lack of substantial prejudice to be incurred by granting late claim relief are frequently analyzed together since they involve similar considerations. Here, movant does not posit any proof that the State had notice of or an opportunity to investigate her claim, but simply argues that the State is not prejudiced, given that the evidence regarding the circumstances of her accident has been preserved. Although the State maintains that it would be prejudiced by the granting of late claim relief, it does not set forth any reasoning in support of that argument. Accordingly, the Court finds that these factors do not weigh in either party's favor. Further, the Court disagrees with movant's contention that she has no other adequate available remedy since, as stated above, she could bring an action against UDC and/or BBPDC in the Supreme Court of the county in which the authority has its principal office or where it has facilities involved in the action (see CPLR 505 [a]; Gembala v Audobon Assn., 97 AD2d at 346; see also McKinney's Uncons. Laws of N.Y. § 6281-a; General Municipal Law § 50-e; Rodriguez v New York State Urban Development Corp., UID No. 2004-016-059 [Ct Cl, Marin, J., Sept. 28, 2004]).
Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that her 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 [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [her] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
Here, the Court finds that movant has met her minimal burden of establishing the appearance of merit. "To establish a cause of action sounding in negligence, [a claimant] must establish the existence of a duty on defendant's part to [the claimant], breach of the duty and damages" (Greenberg, Trager & Herbst, LLP v HSBC Bank USA, 17 NY3d 565, 576 [2011]; accord Korsinsky v Rose, 120 AD3d 1307, 1309 [2d Dept 2014]). In the proposed claim submitted with this motion, movant alleges that she was caused to slip and fall due to certain defects on a walkway in Brooklyn Bridge Park, which the State and/or its employees owned, operated, maintained, managed, and controlled at the time of the accident (Proposed Claim ¶¶ 2, 12-17, 30, 33). The Court finds that said allegations clearly set forth the requisite elements of a cause of action sounding in negligence and "provide a sufficiently detailed description of the particulars of the claim to enable [the State] to investigate and promptly ascertain the existence and extent of [its] liability" (Sommer v State of New York, 131 AD3d 757, 757-758 [3d Dept 2015] [internal quotation marks and citations omitted]). Although the State contends that it does not own, maintain, or operate the park, it does not submit any evidence to that effect (compare Craig v State of New York, 261 AD2d 683, 684 [3d Dept 1999], lv denied 94 NY2d 752 [1999]. Overall, movant's submissions satisfy the minimal burden of showing that her proposed claim, insofar as it is brought against the State of New York, is not "patently groundless, frivolous or legally defective" (Rizzo v State of New York, 2 Misc 3d at 834; see Lostracco v the State of New York, New York State Thruway Auth. and New York State Canal Corp., UID No. 2002-031-064 [Ct Cl, Minarik, J., Dec. 12, 2002]).
Notably, movant's allegations against the State are separate and distinct from those set forth against UDC and BBPDC (Proposed Claim ¶¶ 18-29, 31-32, 34-37).
Accordingly, having weighed and considered the factors set forth under Court of Claims Act §10 (6), the Court exercises its discretion and hereby allows movant to file and serve a late claim against defendant State of New York.
Based upon the foregoing, it is hereby
ORDERED, that movant's motion (M-89289), insofar as it seeks leave to file and serve a late claim against the State of New York, is granted, and movant is directed to file and serve a verified claim identical to the proposed claim provided in support of this motion, except that all allegations against the Brooklyn Bridge Park Development Corporation and the New York State Urban Development Corporation d/b/a Empire State Development Corporation should be removed therefrom, in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof, within sixty (60) days of the filing of this Decision and Order.
February 27, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion for Permission to File a Late Claim, dated September 23, 2016; Affirmation in Support of Motion to File a Late Claim, affirmed by Arthur O. Tisi, Esq., on September 23, 2016, with exhibits. 2. Affirmation in Opposition to Claimant's Motion, affirmed by Edward J. Curtis, Jr., AAG, on October 26, 2016. 3. Affirmation in Opposition to Claimant's Motion, affirmed by Simon Wynn, Esq., on November 10, 2016. 4. Reply Affirmation in Further Support of Claimant's Motion, affirmed by Arthur O. Tisi, Esq., on November 28, 2016. 5. Sur-reply Affirmation in Opposition to Claimant's Motion, affirmed by Simon Wynn, Esq., on December 14, 2016.