Opinion
# 2016-018-738 Claim No. 127776 Motion No. M-88675 Cross-Motion No. CM-88794
09-30-2016
MARY ELLEN BROWNELL v. STATE OF NEW YORK
WILLIAM MATTAR, P.C. By: Matthew J. Kaiser, Esquire of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General
Synopsis
Request for permission to file late claim granted.
Case information
| UID: | 2016-018-738 |
| Claimant(s): | MARY ELLEN BROWNELL |
| Claimant short name: | BROWNELL |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127776 |
| Motion number(s): | M-88675 |
| Cross-motion number(s): | CM-88794 |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | WILLIAM MATTAR, P.C. By: Matthew J. Kaiser, Esquire of Counsel |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 30, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a motion to dismiss the claim for lack of personal and subject matter jurisdiction, untimeliness, and failure to state a cause of action. Claimant opposes the motion and cross moves for permission to file a late claim in accordance with Court of Claims act section 10 (6). Defendant opposes Claimant's cross motion.
The claim seeks damages for injuries Claimant sustained when she fell on broken blacktop with a height differential at the New York State Fairgrounds on August 29, 2015, and fractured her right ankle.
Claimant served a notice of intention on Defendant by personal service on October 29, 2015. Claimant served a verified claim on the Attorney General by personal service on April 27, 2016. The claim was filed with the Clerk of the Court on April 11, 2016. Defendant's Motion to Dismiss
Defendant, by this motion, argues that the claim is untimely and must be dismissed because the notice of intention did not meet the requirements of Court of Claims Act section 11 (b) and, therefore, did not extend Claimant's time to file and serve a timely claim in accordance with Court of Claims Act section 10 (3) or (3-b). As a result, the claim was filed and served more than 90 days after August 29, 2015 and is untimely. Defendant also alleges that the claim fails to meet the requirements of Court of Claims Act section 11 (b).
The Notice of Intention provides in paragraphs 2 and 3:
"2. The nature of the claim is: Claimant, Mary Ellen Brownell, was caused to suffer serious personal injuries when she fell on broken blacktop with a height differential while walking at the New York State Fairgrounds.
3. The time when, the place where and the manner in which the claim arose: On or about August 29, 2015, Claimant, Mary Ellen Brownell, while walking through the New York State Fairgrounds, was caused to fall on broken blacktop. The Claimant, Mary Ellen Brownell, was caused to suffer serious physical injury including, among others, a fracture to her right ankle. Photos of the area in which she fell are attached as Exhibit A. A map of the Fairgrounds (taken from the Fairgrounds website) is attached as Exhibit B. Using the map as a reference, the area in which Claimant fell is near #31."
Defendant attests that no photos were attached to the notice of intention (Exhibit A) nor was there any map of the fairgrounds (Exhibit B).
Court of Claims Act section 11 (b) requires that a notice of intention, like a claim, set forth the time when and the place where such claim arose, and the nature of same. A notice of intention need not meet these statutory requirements with "[a]bsolute exactness," what is required is a statement made with sufficient definiteness to enable the State to investigate the allegations promptly to ascertain its liability under the circumstances and to not mislead, deceive, or prejudice the rights of the State (Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980]; Grumet v State of New York, 256 AD2d 441 [2d Dept 1998]). "A notice of intention will be sufficient if it provides the State with fair and timely notice of those facts necessary to conduct a meaningful investigation." (Cannon v State of New York, 163 Misc 2d 623, 626 [Ct Cl 1994]; Schwartzberg v State of New York, 121 Misc 2d 1095 [Ct Cl 1983], affd 98 AD2d 902 [3d Dept 1983]). "In short substantial compliance with section 11 is what is required." (Heisler v State of New York, supra at 767). Thus, where the notice of intention sets forth the general location of the incident and manner claimant was injured, this has been found to be sufficient. (Klos v State of New York, 19 AD3d 1173 [4th Dept 2005]). The general location is all that may be necessary where the incident occurs inside or where a State actor is involved in a reportable occurrence (Deep v State of New York, 56 AD3d 1260 [4th Dept 2008]; Klos, 19 AD3d at 1174).
Here, Claimant's description of the accident as occurring on broken blacktop at the fairgrounds, an area covering acres with many blacktopped locations, is simply insufficient (Wilson v State of New York, 61 AD3d 1367 [4th Dept 2009]). Those cases finding a general description acceptable, narrowed the area, (i.e., "approaching the entrance of Orleans Correctional Facility."). (Mosley v State of New York,117 AD3d 1417 [4th Dept 2014]), "near the gate to the entrance of the facility;" Acee v State of New York, 81 AD3d 1410 [4th Dept 2011]). Details such as set forth above are missing in Claimant's description. Moreover, Defendant has established that despite its effort to determine where Claimant fell, it was unable to do so based upon the description Claimant provided.
The requirements of Court of Claims Act section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" and the failure to comply results in a failure of subject matter jurisdiction (Lepkowski v State of New York, 1 NY3d 201, 207 [2003]; Kolnacki v State of New York, 8 NY3d 277 [2007]).
Since Claimant's notice of intention failed to comply with Court of Claims Act section 11 (b), it did not extend Claimant's time for filing a timely claim, so that the claim filed and served more than 90 days after the date of accrual is untimely and must be dismissed (Court of Claims Act section 10 [3]).
Defendant's motion is GRANTED. Claimant's Cross-Motion
Claimant brings a cross motion seeking permission to file a late claim. The Court of Claims Act section 10 (6) allows a claimant who has failed to serve a proper notice of intention or who has failed to timely file and serve a claim to make an application to the Court 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 addressing an application for permission to file a late claim, consideration must be given to the six factors listed in Court of Claims Act section 10 (6) and any other relevant factors. No one factor is decisive, rather, it is a balancing of all of the factors that may support the discretionary decision to grant the application (Bay Terrace Coop. Section IV 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]).
The first factor is whether the delay in filing the claim is excusable. Here, providing an inadequate description in the notice of intention or a failure to comply with the law governing commencing an action in this Court, is not a valid excuse (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002] lv denied 99 NY2d 589 [2003]; Matter of Galvin v State of New York, 176 AD2d 1185 [3d Dept 1991]; Modern Transfer Co., Inc., v State of New York, 37 AD2d 756 [4th Dept 1971]).
Defendant did have timely notice that Claimant fell, however, the inability to determine exactly where the fall occurred prevented any meaningful effort to investigate. The State is now also prejudiced by the delay in identifying the specific location of Claimant's fall since these areas have been patched or repaved at some point between August 2015 and April 2016, and can no longer be investigated (Garguiolo v New York State Thruway Auth., 145 AD2d 915 [4th Dept 1988]; Gatti v State of New York, 90 AD2d 849 [2d Dept 1982]). Yet, this must be balanced with the fact that it is not clear exactly when these areas were repaved, making it possible that notice, even at some point within the 90 days after Claimant fell, may have precluded any actual observation of the condition at the accident site. This effectively places the State in the position of defending a transitory condition. Claimant does have pictures of where she alleges she fell which can be more clearly defined during a deposition. The first two factors weigh against granting Claimant's application, but Defendant has not established substantial prejudice.
The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. 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 well-established that the State owes a duty to all who are on its property to keep it in a reasonably safe condition in view of all the circumstances including the risk of injury (Preston v State of New York, 59 NY2d 997 [1983]: Miller v State of New York, 62 NY2d 506, 513 [1984]; Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1987]. Whether a defect on property poses a tripping hazard or is, instead, a trivial defect depends upon many circumstances (Hutchinson v Sheridan Hill House, Corp., 26 NY3d 66 [2015]; Trincere v County of Suffolk, 90 NY2d 976 [1997]). Although the allegations of negligence that Claimant alleges, have at this point potential merit, the issue Defendant raises is whether this proposed claim is legally defective and, therefore, the motion should be denied.
In looking at the proposed claim, it is identical to the claim previously filed and dismissed as untimely. The description of where Claimant fell in the proposed claim, like the notice of intention, fails to meet the requirements of Court of Claims Act section 11 (b). Unlike the notice of intention, Claimant has attached to the proposed claim pictures of the alleged general location where she fell (Exhibit A) and a copy of a map of the fairgrounds (Exhibit B). Claimant also submits, in support of her late claim application, her affidavit stating that she was walking near Delaware Street when she fell.
Defendant, in opposition, argues that the pictures attached to the claim do not identify where the claim arose as the photos show various non-continuous areas of worn pavement. Claimant did not identify exactly where she fell. Defendant has attached the affidavit of Byron Schlenker, the Public Building Manager for the State Fairgrounds, whose duties require him to direct and supervise necessary repairs on the grounds. He contends that the pictures attached to the claim show various areas where the blacktop is worn, and from the photos he cannot determine the dimensions of the alleged hazard. Since the area has now been paved, no measurements can be taken.
Although Defendant has valid concerns with the pictures, Claimant has set forth enough information to advise the State of the general location of her fall, so that the proposed claim is not legally defective and sets forth, at least minimally, sufficient cause to believe Claimant may have a meritorious cause of action.
The final factor to be considered is whether a movant has any other available remedy. It does not appear, based upon the facts as alleged, this Claimant has any other remedy.
Upon balancing all of the factors in the Court of Claims Act section 10 (6), this Court will GRANT Claimant permission to file the late claim. Claimant is directed to file and serve the proposed claim in accordance with Court of Claims Act sections 11 (a) (i) and 11-a for payment of the filing fee within 30 days of the date this Decision and Order is filed with the Clerk of the Court.
Accordingly, Defendant's motion to dismiss the claim filed April 11, 2016, is GRANTED and the claim is DISMISSED. Claimant's motion for permission to file a late claim is GRANTED.
September 30, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding these motions:
M-88675
1) Notice of Motion. 2) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support with exhibits attached thereto.
CM-88794
3) Affidavit of Matthew J. Kaiser, Esquire, sworn to June 24, 2016, in opposition to Defendant's motion, and in support of Claimant's cross motion, with exhibits attached thereto. 4) Affidavit of Merit of Mary Ellen Brownell, sworn to June 20, 2016, in opposition to Defendant's motion, and in support of Claimant's cross motion, with exhibits attached thereto. 5) Memorandum of Law in opposition to Defendant's motion and in support of Claimant's cross motion dated June 27, 2016. 6) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in opposition to Claimant's cross motion with exhibits attached thereto. 7) Reply Affidavit of Matthew J. Kaiser, Esquire, sworn to July 27, 2016, in support of Claimant's cross motion