Opinion
# 2020-040-025 Claim No. NONE Motion No. M-95036
05-04-2020
GUSTAVO DIAZ v. THE STATE OF NEW YORK
GETZ & BRAVERMAN By: Karen Braverman, Esq. LETITIA JAMES Attorney General of the State of New York By: Christopher J. Kalil, Esq., AAG
Synopsis
Pro se Movant's Motion to file a late Claim pursuant to CCA § 10(6) denied.
Case information
| UID: | 2020-040-025 |
| Claimant(s): | GUSTAVO DIAZ |
| Claimant short name: | DIAZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-95036 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | GETZ & BRAVERMAN By: Karen Braverman, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Christopher J. Kalil, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 4, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of Movant, Gustavo Diaz, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied.
Movant, for the second time, seeks permission to serve and file a late claim. The proposed Claim, attached to the Motion papers as Exhibit C, asserts that, on January 1, 2018, Movant was incarcerated at Mid-State Correctional Facility (hereinafter, "Mid-State") and housed in "21-2- 11B," when he burned his left lower leg on a radiator. Movant asserts that the radiator was right next to his bed and that the radiator did not have a cover on it (Proposed Claim, ¶ 3). Movant asserts that Defendant was negligent in the ownership, operation, management, and supervision of Mid-State, in failing to keep him safe from getting third-degree burns from an overly-hot radiator. It is further alleged that the water temperature was excessive and that Defendant failed to inspect and monitor the temperature of the water used to heat the radiator, as well as failed to instruct Movant that there should be adequate space between his bed and the radiator (id., ¶ 2). The proposed Claim also asserts that Defendant violated New York Code of Rules and Regulations (hereinafter, "NYCRR") §712.1.27; NYCRR "Title 12, section Part 14", Labor Law §§ 27-a, 28, 29, 200 and 204, as well as, New York Industrial Code §§ 4 and 14 (id.).
As with the prior Motion, it is unclear if Movant was confined to a cell or was housed in a dormitory. --------
Movant previously moved for the same relief he seeks here. However, at that time, he did not submit a proposed Claim. He submitted a proposed Notice of Intention. In its prior Decision and Order, the Court held:
[T]he proposed Notice of Intention does not meet the requirements of a Claim, as the Notice of Intention fails to comply with Court of Claims Act § 11(b) by failing to include an adequate description of the incident alleged therein. Movant alleges only that Defendant was negligent and did not comply with Federal, State, and local building codes. However, Movant has not established how the State failed to comply with Federal, State, and local building codes.
(Diaz v State of New York, UID No. 2019-040-061 [Ct Cl, McCarthy, J., Aug. 7, 2019]).
The Court denied the Motion without prejudice.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts a cause of action for negligence (CPLR § 214[5], a three-year Statute of Limitations). Movant asserts that the claim accrued on January 1, 2018. The Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations has not yet expired.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Here, Movant has not provided an excuse for failing to timely file and serve his Claim. However, tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together. Movant asserts that Defendant had notice of the facts constituting the Claim and investigated the matter following an inmate grievance filed by Movant. Movant asserts that facility maintenance reported that the radiators should not be hot enough to burn skin and the powerhouse was notified to reduce the temperature of the heating loop (see proposed Claim, ¶ 4, and Ex. D, attached to Affirmation of Karen Braverman, Esq. [hereinafter, "Braverman Affirmation"]).
Defense counsel asserts, in his Affirmation submitted in opposition to the Motion, that the grievance regarding this matter does not reference any specific incident or date and, thus, Movant has not established that Defendant had notice of the facts, had an opportunity to investigate, and that the State was not prejudiced by the delay (Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General [hereinafter, "Kalil Affirmation"], ¶¶ 9-11). However, the State has failed to establish, by submitting an affidavit from a person with knowledge at Mid-State, that it did not have notice of the essential facts of the case or an opportunity to investigate those facts. In the absence of such information, the Court finds that Defendant has failed to establish that it will be substantially prejudiced by the delay in filing the Claim. Those factors, therefore, weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have a possible alternate remedy.
The sixth, final and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], 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]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. 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 Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
The proposed Claim asserts violations of Labor Law §§ 27-a, 28, 29, 200, and 204, and New York Industrial Code §§ 4 and 14. Neither the proposed Claim nor Movant's counsel's affirmation asserts that Movant was injured while performing work. However, even if Movant was performing work, inmates participating in work programs are not State employees and the statutory provisions of the Labor Law do not cover them, nor do they bind Defendant, in connection with such activities (Maldonado v State of New York, 255 AD2d 630, 631 [3d Dept 1998]; D'Argenio v Village of Homer, 202 AD2d 883, 884 [3d Dept 1994]; Garcia v State of New York, UID No. 2009-039-160 [Ct Cl, Ferreira, J., Dec. 24, 2009]). Moreover, the State is not an insurer of the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]) The purpose of Labor Law § 204 "is to protect employees working near boilers" (Cassell v Babcock & Wilcox Co., 186 AD2d 1000, 1001 [4th Dept 1992] [emphasis supplied]). NYCRR Title 12, §§ 4 and 14 contain provisions applicable to boilers as to which Labor Law § 204 applies (12 NYCRR § 4.1.3[a]). In addition, Movant asserts a violation of NYCRR § 712.1.27. The Court notes that part 7 of the NYCRR relates to the Department of Corrections and Community Supervision. Section 712 deals with media review and does not relate to the facts of the proposed Claim. In addition, the Court did not locate a § 712.1.27. Therefore, the Court determines that Movant has failed to establish the cause of action based upon a violation of the Labor Law and the associated provisions of the NYCRR has the appearance of merit.
The Court now turns to the alleged cause of action asserting negligence in the ownership, operation, management, and supervision of Mid-State, in failing to keep Movant safe from getting third-degree burns from an overly-hot radiator. It is further alleged that the water temperature was excessive and that Defendant failed to inspect and monitor the temperature of the water used to heat the radiator, as well as failed to instruct Movant that there should be adequate space between his bed and the radiator.
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 [1984]). Accordingly, while the State is not an insurer of those who enter upon its premises, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, supra; Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]; McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it does have a common-law duty to maintain its facilities "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir 1972], cert denied 412 US 939 [1973]; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]). That duty extends to the State's institutions, including its correctional facilities (see Heliodore v State of New York, supra; Bowers v State of New York, supra).
To establish a prima facie case of negligence, Movant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Movant 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 thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Movant (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept 2011]). Here, there is no allegation in the proposed Claim or in Movant's counsel's affirmation that the State either created any dangerous condition or had actual or constructive notice of any dangerous condition and, therefore, is legally defective. Thus, the Court determines that Movant has failed to establish the cause of action based upon negligence as set forth above, has the appearance of merit (Zosya v State of New York, UID No. 2019-050-053 [Ct Cl, Lynch, J., Dec. 15, 2019]; Cass v State of New York, UID No. 2019-032-041 [Ct Cl, Hard, J., June 24, 2019]).
The Court concludes, based upon the entire record, that Movant has failed to establish that the Claim is not patently groundless, frivolous or legally defective. In addition, Movant has not offered a reasonable excuse for the delay in serving and filing a timely Claim. Accordingly, Movant's Motion for permission to serve and file a Claim late is denied.
May 4, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read on Movant's application for permission to file a late claim: Papers Numbered Notice of Motion, Affirmation in Support & Exhibits Attached 1 Affirmation in Opposition 2