Opinion
# 2013-048-110 Motion No. M-83361
09-11-2013
CHARLES MOREHOUSE v. THE STATE OF NEW YORK
Synopsis
The Court denied Claimant's motion, made pursuant to Court of Claims Act 10 (6), to file a late claim to recover damages for personal injuries sustained as a result of a slip and fall on ice and snow.
Case information
UID: 2013-048-110 Claimant(s): CHARLES MOREHOUSE Claimant short name: MOREHOUSE 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-83361 Cross-motion number(s): Judge: GLEN T. BRUENING ABDELLA LAW OFFICES Claimant's attorney: By: George Abdella, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Thomas Trace, Esq. Senior Attorney Third-party defendant's attorney: Signature date: September 11, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Charles Morehouse, has brought this motion for permission to file and serve a late Claim, pursuant to Court of Claims Act § 10 (6), to recover damages for personal injuries arising out of a slip and fall that took place at 9:00 a.m. on February 24, 2012 at the parking lot of the Sunmount Developmental Disabilities Services Office (DDSO) facility, located at State Route 30, Speculator, New York 12164, which is alleged by Claimant to be operated and maintained by the New York State Dormitory Authority (Dormitory Authority). Specifically, Claimant alleges that, on the date of the accident, he was employed by Blue Line Commuter (Blue Line) and, pursuant to a contract between Blue Line and the State of New York, Claimant was responsible for transporting individuals to the DDSO facility using a bus provided by his employer. After completing certain transportation duties on the date of the accident, Claimant alleges that as a result of Defendant's negligence, he sustained certain personal injuries when he fell on accumulated ice and snow while traversing the DDSO parking lot. Defendant opposes Claimant's motion.
In an action to recover damages to property or for personal injuries, Court of Claims Act § 10 (3) requires that a Claim be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim unless, within that same time frame, a Notice of Intention to File a Claim (Notice of Intention) is served upon the Attorney General, in which event the Claim shall be filed and served within two years after its accrual. Failure to timely serve the Attorney General with the Notice of Intention, or to timely file and serve the Claim, divests the Court of subject matter jurisdiction (see Alston v State of New York, 97 NY2d 159, 164 [2001]; Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013]). However, if a claimant fails to timely file or serve the Claim, or fails to timely serve the Notice of Intention, he or she may move the Court for permission to file and serve a late Claim, so long as the applicable statute of limitations set forth in article 2 of the CPLR has not expired (see Court of Claims Act § 10 [6]). As is relevant to this action, CPLR 214 (5) requires that an action to recover damages for personal injuries be commenced within three years of the date of the injury. Accordingly, since the Claim is alleged to have accrued on February 24, 2012, Claimant's application for late Claim relief is made within the applicable statute of limitations.
In addressing the substance of Claimant's motion, the Court of Claims is vested with broad discretion to grant or deny an application that seeks permission to file a late Claim (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009]) after consideration of, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy (Court of Claims Act § 10 [6]). However, "the presence or absence of any one factor should not be deemed controlling" (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009] [internal quotation marks and citation omitted]).
With respect to the excusable delay factor in Court of Claims Act § 10 (6), Claimant contends that he was unaware that DDSO was an entity owned and operated by the State of New York with the responsibilities to salt and sand the parking lot and that he could pursue an action for pain and suffering (see Affidavit of Charles Morehouse, ¶¶ 4 and 5). Claimant's Counsel asserts that on April 18, 2013, Counsel received a copy of a lease between the Dormitory Authority and Brant Bros., Inc. - the landlord of the premises (see Affidavit of George Abdella, Esq., ¶ 10). Pursuant to the terms of that lease agreement, Brant Bros., Inc. was responsible for snow plowing and snow removal, while the DDSO was responsible for salting and sanding the sidewalks and parking lot. In opposition, Defendant argues that Claimant has not established a sufficient excuse for the delay. Defendant also points to a copy of correspondence to Claimant, dated October 31, 2012, from Blue Line's insurer, advising Claimant of its subrogation interests in any third-party settlement (see Affidavit of George Abdella, Esq., Exhibit B). In noting that ignorance of the law is not an acceptable explanation for Claimant's delay (see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]), while not a bar to the application, the Court finds that the excusable delay factor does not weigh in Claimant's favor.
In opposition to Claimant's motion, Defendant submits the Affidavit of James Sanford, the Treatment Team Leader at the Speculator Day Habilitation Facility with the Sunmount Developmental Disabilities State Operations Office with the DDSO. Mr. Sanford clarifies that the building and property at issue is owned by Brant Bros., Inc. and leased by the Sunmount DDSO. Mr. Sanford asserts that the Dormitory Authority does not own or manage the property. Rather, the Dormitory Authority arranged for the lease agreement only (see Sanford Affidavit, ¶ ¶ 1 and 2).
A copy of the lease agreement was not attached to the motion. Rather, attached to Claimant's submission is a copy of undated correspondence from Brant Bros. Inc.'s general liability insurance company (Travelers), which purports to quote, among other provisions, "Rider 'A'," "Article 51" of the lease agreement, which is entitled "Snow/Lawn Care" (Affidavit of George Abdella, Esq., Exhibit C).
With respect to the section 10 (6) factors of notice of essential facts, opportunity to investigate, and substantial prejudice to the State, Claimant asserts that the State had notice of the essential facts constituting the Claim as evidenced by Claimant's attestation that he reported the incident to a DDSO employee - Dawn Moran - at approximately 3:00 p.m. on the date of the accident (see Affidavit of Charles Morehouse, ¶ 2). Claimant further attests that Ms. Moran provided him with an accident form, which he filled out and, as directed by Ms. Moran, he provided to his employer. In response, Defendant provides an affidavit from Ms. Moran, a keyboard specialist employed by the DDSO, whose duties include providing accident forms to individuals who report accidents at that facility. Ms. Moran attests that, while she has "no independent recollection of February 24, 2012," she worked that day, and does "not recall there being icy conditions in the parking lot . . ." (Affidavit of Dawn Moran, ¶¶ 2 and 3). Ms. Moran attests that "upon information and belief, Charles Morehouse never informed [her] that he was injured in the parking lot . . ." (Affidavit of Dawn Moran, ¶ 2) and that, whenever a report of an injury is made, she addresses it in the same manner - by providing an accident form to the individual and asking that it be filled out for return to her. Ms. Moran then provides the completed form to her supervisor. Ms Moran attests that she has never handed out an accident form and instructed the reporting individual to provide it to their employer (see Affidavit of Dawn Moran, ¶ 2). Defendant also submits the affidavit of James Sanford - the Treatment Team Leader at the Speculator Day Habilitation Facility with the Sunmount Developmental Disabilities State Operations Office with the DDSO - who confirms that, pursuant to a lease agreement with Brant Bros., Inc., Sunmount is responsible for sanding and salting the parking lot. While Mr. Sanford concedes that he has no independent recollection of the conditions of the parking lot on the date of the accident, he attests that the billing records of Guisti Enterprises - the entity responsible for sanding/salting the parking lot on the date of the accident pursuant to a contract with Sunmount - indicate that the parking lot was not sanded or salted on that date. By this information, and because Guisti Enterprises would have been contacted to salt or sand the parking lot if he or his staff noticed icy conditions, Mr. Sanford believes that the parking lot was not icy on the date of the accident (seeAffidavit of James Sanford, ¶ 3). Mr. Sanford asserts that the delay in filing a Claim has substantially prejudiced Defendant. Based on this evidence, Defendant asserts that it did not have notice of the essential facts within such time as to conduct a reasonable investigation and that it would be prejudiced by the filing of a late Claim in this matter.
While Mr. Sanford asserts that Charlie White is responsible for plowing the parking lot for Brant Bros., Inc. (see Affidavit of James Sanford, ¶ 3), Defendant's counsel asserts that an entity named Pro Care removes snow for Brant Bros., Inc. (see Affirmation of Thomas Trace, Esq., ¶ 5).
While Claimant attests that Ms. Moran provided him with a blank accident report, he does not attach a copy of that accident report to his motion papers. Furthermore, regardless of Ms. Moran's inability to recollect the events of February 24, 2012, her attestation that she followed the same practice each time she received a report of an accident is probative evidence that she would have followed the same procedure on the date of the accident if, in fact, an accident was reported to her (see Rivera v Anilesh, 8 NY3d 627, 633-634 [2007]). It also seems unlikely that Mr. Morehouse would have been directed by Ms. Moran to provide the completed accident report to Blue Line when Blue Line has no responsibility for maintaining the parking lot. Thus, the Court finds that Claimant has failed to establish that Defendant had notice of the essential facts constituting the Claim. Moreover, as it is generally recognized that prejudice is more likely to result where a proposed claim involves transitory conditions such as ice or snow (see Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990];Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915, 916 [4th Dept 1988]), the Court finds that, having no notice of the essential facts constituting the Claim, Defendant was precluded from conducting a timely investigation and would be substantially prejudiced by the filing of a late Claim. Thus, these factors do not weigh in Claimant's favor.
Claimant does not address whether he has other remedies available, and the record reveals that Claimant applied for and received certain Workers' Compensation benefits (see Affidavit of George Abdella, Esq., Exhibit B). As these benefits offer a partial alternative remedy to Claimant, this factor does not weigh in Claimant's favor (see Matter of Lockwood v State of New York, 267 AD2d 832, 833 [3d Dept 1999]).
While the final factor applicable to Claimant's motion - the appearance of merit - may arguably be the most crucial factor in section 10 (6) (see Matter of Martinez v State of New York, 62 AD3d at 1226), it does not require Claimant to definitively establish the merits of the proposed Claim. Rather, Claimant needs to establish that the proposed Claim is not "patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]). Here, the proposed Claim asserts a cause of action sounding in negligence based on, among other things, the State's failure to maintain the parking lot area of the DDSO in a reasonably safe condition and to salt and sand the area to protect against the accumulation of snow and ice (see Affidavit of George Abdella, Esq., Exhibit A, ¶ 6-8). In opposition to Claimant's motion, Defendant argues that Claimant's conclusory allegations of negligence, without providing the duration that the dangerous condition is alleged to have existed or the extent of the snow and ice accumulation, fails to establish the appearance of merit of the proposed Claim (see Affirmation of Thomas Trace, Esq., ¶ 12).
While the State "is not an insurer against every injury that might occur on its property" (Covington v State of New York, 54 AD3d 1137, 1137-1138 [3d Dept 2008]), as the occupant of the premises, the State "has a common law duty to keep the property in reasonably safe condition" (Zuckerman v State of New York, 209 AD2d 510, 511 [2d Dept 1994]). This standard of care "must be applied with an awareness of the realities of the problems caused by winter weather" (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [3d Dept 1988]). To establish liability for an icy condition, a claimant must establish that a defendant had either actual or constructive notice of the particular condition (see Payton v 5391 Tr. Rd., LLC, 107 AD3d 1461, 1462 [4th Dept 2013]; Quintanilla v State of New York, 94 AD3d 846, 847 [2d Dept 2012]). However, the "[g]eneral awareness that icy conditions may exist is insufficient to establish constructive notice" (Richer v State of New York, 31 AD3d 943, 944 [3d Dept 2006] [internal quotation marks and citations omitted]). While Claimant is not required to definitively establish the merits of his Claim at this juncture, there is no allegation, let alone any evidence, that Defendant created the condition or otherwise was aware of its existence, and for how long. The conclusory allegations that Claimant was caused to fall because of an accumulation of ice and snow based on Defendant's failure to salt and sand the parking lot are insufficient to support the initial appearance of merit of the Claim. Accordingly, this factor does not weigh in Claimant's favor.
In this regard, the State's "duty to remedy a dangerous condition caused by a storm is suspended while the storm is in progress and for a reasonable time after it has ceased" (Sanders v Wal-Mart Stores, Inc., 9 AD3d 595, 595 [3d Dept 2004]). There is no allegation made by either Claimant or Defendant regarding the weather conditions leading up to the time of the fall.
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Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), the Claimant's Motion No. M-83361 is denied.
September 11, 2013
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claimant's Notice of Motion, filed May 6, 2013;
Affidavit of George Abdella, Esq., unsworn, filed May 6, 2013, with Exhibits A-C [Proposed Claim, Correspondence from Chartis, dated October 31, 2012, and Correspondence from Travelers, undated];
Affidavit of Charles Morehouse, sworn to on April 30, 2013;
Affirmation of Thomas Trace, Esq., dated July 3, 2013, with Exhibits 1-2 [Affidavit of James Sanford, sworn to on June 17, 2013; Affidavit of Dawn Moran, sworn to on June 17, 2013].