Opinion
# 2019-041-002 Claim No. NONE Motion No. M-93051
01-11-2019
CAYLYN NORTHBURG v. THE STATE OF NEW YORK
SMALLINE AND HARRI, ATTORNEYS By: Martin D. Smalline, Esq. HON. LETITIA JAMES New York State Attorney General By: Shadi Masri, Esq. Assistant Attorney General
Synopsis
Application to file late claim is granted where claim alleging negligent failure of defendant to clear sidewalk of snow and ice has appearance of merit and defendant had prompt notice of circumstances underlying claimant's accident and injuries.
Case information
| UID: | 2019-041-002 |
| Claimant(s): | CAYLYN NORTHBURG |
| Claimant short name: | NORTHBURG |
| 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-93051 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | SMALLINE AND HARRI, ATTORNEYS By: Martin D. Smalline, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Shadi Masri, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 11, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for permission to file a late claim. Defendant opposes the motion.
The proposed claim alleges that on January 16, 2018, at about 8:30 a.m., claimant slipped and fell, while on her way into work, on "slick untreated ice" on the sidewalk in front of her place of employment with the New York State Department of Education (NYSDOE) in Albany, New York. Claimant alleges that the icy condition of the sidewalk caused her "feet to go out from under me, fracturing my fibula and tibia." Claimant immediately called her employer, while still on the ground, to report that she "would be transported to the hospital by ambulance." A fellow employee of claimant waited with claimant for the ambulance to arrive and advised claimant's supervisor of the incident. The claimant's affidavit in support of her application shows that, on January 19, 2018, the claimant's supervisor submitted to the New York State Accident Reporting System a "Supervisor's Report of Employee Injury or Accident" detailing the circumstances of claimant's accident.
The claim further alleges that on January 17, 2018, claimant retained a law firm to pursue a workers compensation claim. On June 28, 2018, the Workers Compensation Board determined that claimant was not in the "course of [her] employment" at the time she was injured and her workers compensation case was closed. Claimant alleges that she did not learn of the workers compensation case closure until "August 2018."
The claimant's law firm also explored the possibility of a personal injury lawsuit against the City of Albany, for "failure to maintain the sidewalk," but the law firm advised claimant by letter on February 12, 2018 that it would not pursue the lawsuit because success would require "prior written notice" of the allegedly dangerous condition "which was unlikely with a snow and ice claim."
After retaining her present attorneys on September 17, 2018, claimant made this application, on October 16, 2018, seeking permission to file and serve a late claim against the State of New York, alleging that claimant was "injured as a result of the State of New York's negligence in maintaining the area where I fell." The claim further alleges that defendant failed to "rectify the dangerous situation."
In particular, claimant alleges, in her supporting affidavit, that she fell when she "stepped on slick smooth ice covered with a thin layer of snow. The sidewalk did not seem to be treated in any way with salt, calcium chloride, scraping, or in any other way."
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
The cause of action arose on January 16, 2018. The application to file a late claim was made on October 16, 2018, approximately six months after the ninety-day period to serve and file a claim had expired (see Court of Claims Act 10 [3]).
The proposed claim alleges a cause of action sounding in negligence. CPLR 214 provides a three-year period to commence an action for negligence and the cause of action is not time-barred by CPLR Article 2.
In determining the application, Court of Claims Act 10 (6) provides that:
"[T]he court shall consider, 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."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).
Claimant seeks to excuse her failure to timely serve and file her claim by essentially alleging law office failure on the part of her initial attorneys "which is not a reasonable excuse" (Decker v State of New York, 164 AD3d 650, 652 [2d Dept 2018]; Almedia v State of New York, 70 AD2d 712, 713 [3d Dept 1979]).
Although claimant has failed to offer a reasonable excuse for her failure to timely file and serve the claim, "the 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, Inc., 55 NY2d at 981).
The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. The State appears to have had immediate notice of claimant's accident and an opportunity to investigate the circumstances underlying the proposed claim, because claimant immediately notified her supervisor and an accident report was prepared and provided to the New York State Accident Reporting System. A workers compensation claim was quickly filed by claimant and, significantly, investigated, and eventually opposed, by the State. It was immediately obvious that claimant had suffered significant injuries and defendant, in the exercise of due diligence, would be expected to, at a minimum, conduct a preliminary investigation of its potential liability for claimant's serious injuries.
Defendant does not credibly deny that it had notice and an opportunity to investigate the circumstances underlying the proposed claim; nor does defendant credibly suggest that it would be prejudiced in the event late claim relief is granted. These factors weigh in favor of claimant.
Claimant has been denied workers compensation benefits and has no alternative remedy.
Section 10 (6) requires that the proposed claim not be "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 Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Marcellus v Nathan Littauer Hosp. Assn (145 AD2d 680, 681 [3d Dept 1988]) sets forth the guiding legal principles in a claim involving a slip and fall on ice or snow:
"Analysis of a case involving a slip and fall in winter conditions starts with the well-settled principle that a party who possesses or controls real property is under a duty to exercise reasonable care under the circumstances . . . . This standard must be applied with an awareness of the realities of the problems caused by winter weather . . . . Thus, there must be evidence that the presence of the snow or ice created a dangerous condition which defendant knew or in the exercise of reasonable care should have known existed . . . . A defendant is afforded a reasonable time after the cessation of the storm or temperature fluctuations which created the dangerous condition to exercise due care to correct the situation."
Here, while the defendant may or may not be the owner of the sidewalk where claimant fell, claimant argues that section 323-21 of the Albany City Code imposed a duty upon defendant to "clear the sidewalks in front of [its] building . . . of snow and ice . . . [or] cause said snow and ice to be strewn with ashes, sand or the like" within "24 hours of the cessation of a snowfall."
In Williams v Kenyon (63 AD3d 1423 [3d Dept 2009]), potential liability for a freeze/melt ice condition is illustrated:
"While visiting a tenant on defendants' property, plaintiff slipped on ice and injured himself. The accident occurred at the bottom of a slight decline in the driveway where it intersects with a sidewalk. "
The Williams court noted that it was "undisputed that defendants did not create or have actual notice of any icy condition on the property. Rather, the issue distills to whether they had constructive notice of it." The Williams court nevertheless affirmed the lower court's denial of defendant's summary judgment motion, stating, at 1424, that plaintiff:
"[S]ubmitted an affidavit from a meteorologist who stated that his review of climatological data revealed that the weather conditions were conducive for melting and refreezing processes on March 1, 2006 and March 2, 2006 (plaintiff fell on March 4, 2006) and that the subject ice patch had therefore been present for at least 48 hours . . . Under these circumstances, factual issues sufficient to defeat summary judgment have been raised "
Claimant has provided the affidavit of meteorologist Howard Altschule (Altschule), who has reviewed and submitted certified meteorological records of the National Centers For Environmental Information, U.S. Department of Commerce, which document extensive temperature and precipitation data for the approximate location of claimant's accident.
Altschule opines, to a "reasonable degree of scientific and meteorological certainty," that on the morning of January 16, 2018 light snow fell and accumulated on "top of areas of old ice that remained on exposed, untreated and undisturbed surfaces" causing "an even more dangerous and slippery condition to be present by concealing the icy condition that had been present for at least 73½ hours prior to the time of the incident."
Altschule concludes that "[i]f the ice that was present had been adequately treated and removed with ice treatment chemicals anytime after the ice last formed 73½ hours prior to the time of the incident, then the ice that caused [claimant] to fall would not have been present."
Defendant has not offered an affidavit, by either a person with personal knowledge of the facts or by a meteorologist, disputing the factual allegations of the proposed claim and the supporting affidavits or disputing the conclusions of claimant's expert. The allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
The proposed claim demonstrates at least the "appearance of merit" of a cause of action for premises liability based upon a dangerous condition.
Based upon a balancing of the factors set forth in section 10 (6) of the Court of Claims Act, the Court grants claimant's application to file a late claim.
Claimant is directed to file and serve her claim in compliance with sections 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this decision and order with the Clerk of the Court of Claims.
January 11, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed October 18, 2018; 2. Affirmation of Martin D. Smalline, dated October 16, 2018, and attached exhibits; 3. Affidavit of Caylyn Northburg, sworn to September 20, 2018, and attached exhibits; 4. Affidavit of Howard Altschule, sworn to October 4, 2018; 5. Curriculum Vitae of Howard Altschule; 6. Certified meteorological records of National Centers For Environmental Information, U.S. Department of Commerce; 7. Proposed Notice of Claim; 8. Affirmation in Opposition of Shadi Masri, dated November 21, 2018.