Opinion
Motion No. M-95595
09-24-2020
Lisa Elibol, Claimant v. State of New York, Defendant. Motion No. M-95595
Defendant's attorney: HON. LETITIA JAMES BY: TAMARA B. CHRISTIE, ESQ. Assistant Attorney General
Unpublished Opinion
MOTION DECISION
Defendant's attorney: HON. LETITIA JAMES
BY: TAMARA B. CHRISTIE, ESQ. Assistant Attorney General
Debra A. Martin, J.
Recitation:
The following papers were read on movant's motion to file a late notice of claim:
1. Notice of Motion, filed June 11, 2020;
2. Affidavit of Chris Devries, P.E., with attached exhibits, sworn to April 8, 2020;
3. Affirmation of Richard P. Amico, Esq. with attached exhibits, dated June 5, 2020;
4. Memorandum of Law, dated June 5, 2020;
5. Affidavit of Lisa Elibol, with attached exhibits, sworn to July 20, 2018;
6. Affirmation of Tamara B. Christie, AAG, with attached exhibit, dated August 3, 2020;
7. Memorandum of Law, with attached exhibits, dated August 3, 2020.
Pursuant to Court of Claimant Act § 10 (6), movant moves for permission to file a late claim against the State and the New York State Thruway Authority (jointly referred to as "the State") seeking damages for injuries she sustained when she fell getting out of her vehicle at the Clifton Springs Rest Area ("rest area") located on the New York State Thruway. This is movant's second application for such relief. In this Court's prior Decision and Order, movant's application for late claim relief was denied without prejudice because the statutory factors did not weigh in her favor. (Elibol v State of New York, Claim No. 130636, Motion No. M-92436, CM-92931, unreported [Ct Cl, Martin, J., Apr. 16, 2019].) Specifically, movant did not demonstrate a reasonable excuse, nor, that her claim was meritorious. As to the other statutory factors, the Court determined that: 1) the intertwined factors of notice, opportunity to investigate and prejudice favored the movant since the State was silent as to these; and 2) no party was favored as to an alternative remedy because this issue was not adequately addressed by either party. (Id.)
The State opposed the current application. As to the merits, the State contended that movant had not sufficiently addressed the Court's prior finding that her application failed to demonstrate a meritorious claim; specifically, that movant failed to provide proof refute the State had actual or constructive notice of the ice patch. Further, the State argued that the Court should not countenance the movant's attempt to hold it to higher standard of care than the general public.
Initially, the Court addresses movant's characterization of the present motion as one for "renewal," and the State's averment that movant failed to show that renewal is either procedurally or substantively appropriate. Although, movant's counsel referred to this motion as a "renewal," he also clearly indicated he was again requesting permission for late filing. A second application for late claim relief, filed and served within the applicable statute of limitation is permissible as there is no statutory bar. Accordingly, CPLR 2221 has no bearing on the motion before the Court and movant is not mandated to meet the requirements set forth in CPLR 2221. This is especially so since the Court specifically denied movant's prior motion without prejudice, clearly indicating her right to submit a second application for late claim relief. (see Berkeley v State of New York, UID No. 2016-049-005 [Ct Cl, Weinstein, J., Mar. 3, 2016]; see Lowman v State of New York, UID No. 2019-018-036 [Ct Cl, Fitzpatrick, J., July 8, 2019].)
In light of its earlier decision and the parties' papers, the Court turns to the sole issue needing consideration - whether the movant's second motion demonstrated that her proposed claim has the appearance of merit. Although movant need not demonstrate that she is likely to prevail on her claim, she must establish that her proposed claim is not "patently groundless, frivolous, or legally defective" and that the totality of the evidence submitted in support of her application shows "reasonable 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].)
As with all property owners, the State is responsible for using reasonable care in maintaining its property in a reasonably safe condition, considering all the circumstances, including the likelihood of serious injury and the burden of avoiding the risk. (Basso v Miller, 40 N.Y.2d 233, 241 [1976].) New York courts have long recognized the reality of living in our winters and acknowledged "it was unreasonable to expect sidewalks and outside steps to be kept entirely free from snow and ice in this climate in the winter time." (Hallock v Ballachey, 284 NY 648, 649 [1940].) The fact that an individual slips and falls on State-owned land does not render the State liable if the conditions existing at the time of "the accident were not so unusual, dangerous or different from the conditions ordinarily prevailing... in the locality." (Ansbro v State of New York, UID No. 2002-013-516 [Ct Cl, Patti, J., Dec.12, 2002] [internal quotation marks and internal citations omitted].) When ice is alleged to have caused a fall, a property owner will only be held liable if it created the dangerous condition or had actual or constructive notice of the icy condition. (Spinoccia v Fairfield Bellmore Ave., LLC, 95 A.D.3d 993, 993 [2d Dept 2012].) Here, since there is no allegation that the State's actions created the icy condition, the sole issue is whether it had actual or constructive notice of it.
The uncontradicted affidavit of Tina Smith, who was employed by Marriott Family Restaurants, Inc. at the rest area as the Food and Beverage Manager of the plaza on April 8, 2017, established that the State had no actual notice of the alleged dangerous condition. Ms. Smith averred that she reviewed incident reports and confirmed that movant fell at approximately 9:54 a.m. and that there were no reports of falls, nor any complaints regarding the conditions on any sidewalk or parking lot prior to 9:54 a.m. Further, she has no personal knowledge of any complaints being made to her or anyone else on that day prior to the movant's fall. Accordingly, in light of movant not submitting any evidence to refute the State's claim of any actual notice of the alleged icy condition, the Court must concur with it that movant has not sustained her burden of demonstrating the appearance of merit as to liability based on actual notice.
As to constructive notice, it has long been held that "[t]o constitute constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 [1986].) Here, for the reasons set forth below, the Court finds that the movant did not establish that the icy condition was readily apparent or had existed for a sufficient amount of time to permit the State to discover and remedy it.
Movant's reliance upon Quinn v Holiday Health & Fitness Ctrs. of NY, Inc. is misplaced. (15 A.D.3d 857 [4th Dept 2005]). The defendant in Quinn had moved for summary judgment and, therefore, bore the initial burden of proving lack of actual or construction notice. Here, movant is seeking permission to file a late claim and has the initial heavy burden of providing sufficient evidence that the State had either actual or constructive notice. (Grange v State of New York, UID No. 2006-009-030 [Ct Cl, Midey, J., May 23, 2006].)
As previously noted in this Court's first decision, movant's affidavit was insufficient. It merely stated she "stepped onto ice." (aff of movant at 1 & 2.) Movant did not provide a description of the ice as to its appearance, thickness, or size. Specifically, she did not state whether the ice was visible and readily apparent or consisted of black ice. Although photographs were attached to movant's motion papers, they were once again of no evidentiary value because they were of such poor quality. This lack of description mirrors that in the proposed claim and is critical to the Court's analysis because if the condition was not "visible and apparent," defendant cannot be held liable for failing to observe and remedy it. (see DeJesus v CEC Entertainment, Inc., 138 A.D.3d 1390, 1391 [4th Dept 2016].)
Equally unavailing are the affidavits of movant's experts. The report of Aaron Mentkowski, a meteorologist, is insufficient to demonstrate the appearance of merit as to movant's contention the State had constructive notice of the alleged icy condition since it was completely speculative and conclusory. (Austin v CDGA Natl. Bank Trust & Canandaigua Natl. Corp., 114 A.D.3d 1298 [4th Dept 2014]; see also Drissi v Kelly, 30 A.D.3d 1009, 1010 [4th Dept 2006].) Although Mr. Mentkowski relied upon data from the National Climatic Data Center (NCDC) and the National Weather Service (NWS), which data is self-authenticating, his opinion lacked adequate foundation since it relied upon data collected at the Greater Rochester International Airport (ROC), the Dansville Municipal Airport (DMA), and Penn Yan Airport (PYA), none of which is in close proximity of the rest area, with ROC located 25 miles to the northwest, DMA located 35 miles to the southwest, and PYA located 20 miles to the south. (Martin v RP Assoc., 37 A.D.3d 1017, 1019 [3d Dept 2007].) It is evident from an examination of the data relied upon by Mr. Mentkowski that Spring weather in upstate New York varied widely within short distances and such data did not lend itself to reliable predictions, certainly not as to the formation of a single patch of ice.
The report, dated October 22, 2019, does not contain an oath or any language signifying that the author attested to its authenticity or that it was made under penalty of perjury. The report merely has handwritten "SWORN 4/8/20" above a notary public's signature.
CPLR 4528, entitled Weather Conditions, provides "[a]ny record of the observations of the weather, taken under the direction of the United States weather bureau, is prima facie evidence of the facts stated."
Moreover, the report lacked an explanation of how the data was extrapolated and its relevance given the distance of the three airports from the rest area. It has long been held that weather conditions in a region are not sufficient to establish the weather conditions at an accident site. (Greco v Grande, 160 A.D.3d 1345, 1346 [4th Dept 2018]; Neidert v Austin S. Edgar, Inc., 204 A.D.2d 1030, 1031 [4th Dept 1994].) In addition, there was no support in the record or that Mr. Mentkowski had the expertise to render an opinion as to the presence of "standing" water on the pavement.
Therefore, the Court agrees with the State's position that Mr. Mentkowki's opinion is insufficient to support the claim that the State had constructive knowledge of the icy condition. As the Court noted in its previous opinion, the issue here is not whether there was ice in the parking lot but rather how much ice, when did it form, and was it readily visible. A general assessment that icy conditions were present does not sustain the movant's burden to demonstrate the appearance of merit that the State had constructive knowledge of it. (Spinoccia v Fairfield Bellmore Ave., LLC, 95 A.D.3d 993, 993-994 [2d Dept 2012]; see Clarke v State of New York, 24 Misc.3d 1226 at 6-7 (A) [Ct Cl 2009].)
Movant also submitted the affidavit of Chris Devries a licensed professional engineer who prepared a report regarding this fall. Mr. Devries opined that the State was negligent because it failed to inspect and observe the ice in the parking lot and to treat the ice with salt. (aff of Devries, at 1, ¶ 3.) Mr. Devries opined that the State violated the 2015 Property Maintenance Code of New York § 302.3 in failing to maintain the parking lot free from hazards. Further, that "[t]his icy surface did not provide a high enough coefficient of friction to maintain a stable center of gravity when stepping out of the vehicle, which led to a loss of balance and a fall." (id.) The State challenged the conclusion that its alleged breach of a code established negligence because that standard exceeded the standard of care required by law. It further submitted that the law did not require it to inspect or to salt when there was no actual knowledge of icy conditions and only general knowledge that icy conditions may occur.
Mr. Devries' report is of no assistance to movant's application. First, there is nothing in his credentials as a mechanical engineer that would allow him to opine on these issues. Second, it is common knowledge that ice is slippery. Since this fact is within the "experience and observation of an ordinary" layperson, an expert opinion is not permitted. (O'Neill v Pelusio, 65 A.D.2d 914, 914-915 [4th Dept 1978].) Third, without proof that the icy condition was readily visible and apparent, the State's alleged failure to inspect is irrelevant. (DeJesus v CEC Entertainment, Inc., 138 A.D.3d 1390, 1391 [4th Dept 2016]; see Quinn v Holiday Health & Fitness Ctrs. of NY, Inc., 15 A.D.3d 857, 857-858 [4th Dept 2005].)
Furthermore, the 2015 Property Maintenance Code § 302.3 does not impose a duty upon the State to inspect. This section merely provides that "[s]idewalks, walkways, stairs, driveways, parking spaces and similar areas shall be kept in a proper state of repair, and maintained free from hazardous conditions." Since this administrative code only indicates a general and nonspecific duty to maintain the parking lot in a safe condition, it cannot be the basis to impose a duty from which liability can be established. (Witkowski v Island Trees Pub. Lib., 125 A.D.3d 768, 770 [2d Dept 2015] citing Nikolaidis v La Terna Rest., 40 A.D.3d 827, 828 [2d Dept 2007].)
Although movant presented general evidence that an icy condition caused her fall, she did not submit sufficient evidence that the State had either actual or constructive notice of that condition. As a result, movant has not sustained her heavy burden that her claim has the appearance of merit. (see Lange v State of New York, 133 A.D.3d 1250, 1250 [4th Dept 2015].)
Therefore, it is hereby ORDERED that movant's second motion for late claim relief (M-95595) is denied.