Opinion
# 2019-054-017 Claim No. 132039 Motion No. M-93121 Motion No. CM-93169
04-18-2019
CHERYL O'BRIEN v. THE STATE OF NEW YORK
GROVER & FENSTERSTOCK, P.C. By: Meredith D. Gray, Esq. HON. LETITIA JAMES Attorney General for the State of New York By: Barry, McTiernan & Moore, LLC Robert C. McMahon, Esq.
Synopsis
Claim dismissed, Notice of Intention to File a Claim was a nullity, Notice of Intention to File a Claim cannot be amended, claim was untimely, late claim application denied, no merit
Case information
| UID: | 2019-054-017 |
| Claimant(s): | CHERYL O'BRIEN |
| Claimant short name: | O'BRIEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has, sua sponte, amended the caption to reflect the only proper party defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132039 |
| Motion number(s): | M-93121, CM-93169 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | GROVER & FENSTERSTOCK, P.C. By: Meredith D. Gray, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES Attorney General for the State of New York By: Barry, McTiernan & Moore, LLC Robert C. McMahon, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | April 18, 2019 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-4 were read and considered by the Court on the State's motion to dismiss and claimant's cross-motion for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation, Memorandum of Law and Exhibits.....................................................................................................................1
Notice of Cross-Motion and Opposition to the State's Motion to Dismiss, Attorney's Affirmation in Support of Cross-Motion and Opposition to the State's Motion to Dismiss and Exhibits................................................................................................2
The State's Reply Affirmation..................................................................................3
Claimant's Reply Affirmation..................................................................................4
On December 30, 2016, the Attorney General's office was served with a Notice of Intention to File a Claim alleging that at approximately 4:15 p.m. on October 6, 2016, claimant slipped and fell on loose gravel and/or millings on the road while walking westbound on Lafayette Avenue and crossing over the north side of Chestnut Street in the Village of Suffern, Town of Ramapo, County of Rockland (State's Ex. A). While the Notice of Intention to File a Claim names only the State of New York in the caption, the Notice of Intention to File a Claim does not contain any allegations of wrongdoing by the State (State's Ex. A, ¶¶ 1, 2). Rather, the allegations of wrongdoing refer only to the Village of Suffern, Town of Ramapo, and/or the County of Rockland (id.). Specifically, the Notice of Intention to File a Claim alleges that:
"[t]he nature of the claim is: To recover damages for personal injuries suffered by claimant due to the reckless and/or negligent conduct of THE VILLAGE OF SUFFERN, TOWN OF RAMAPO, and/or the COUNTY OF ROCKLAND its ownership, maintenance, control, operation, design, construction and repair of a certain street at the intersection of Chestnut Street and Lafayette Avenue, in Suffern, New York . . .
THE VILLAGE OF SUFFERN, TOWN OF RAMAPO, and/or the COUNTY OF ROCKLAND had been performing roadwork, including, but not limited to milling and/or resurfacing, . . . and that they posted no signs of work being performed in the area.
It will be claimed that THE VILLAGE OF SUFFERN, TOWN OF RAMAPO, and/or the COUNTY OF ROCKLAND, though each of its agents, servants and/or employees negligently maintained and/or repaired the roadway, caused and/or allowed the roadway to remain in a state of disrepair, and that the road, gravel, and/or milling constituted and [sic] defective and/or hazardous condition [emphasis added]"
(id.).
A claim against the "New York State Department of Transportation s/h/a The State of New York" was filed with the Court on September 25, 2018 and a copy of the claim was served upon the Attorney General's office on October 3, 2018 (State's Ex. B). The claim alleges that the New York State Department of Transportation s/h/a The State of New York was negligent and/or reckless in its ownership, management, maintenance and supervision of the site in permitting the gravel and/or millings to create a hazardous and trap-like condition (id.). The claim does not allege any wrongdoing on the part of the Village of Suffern, Town of Ramapo and/or the County of Rockland, as was alleged in the Notice of Intention to File a Claim served upon the Attorney's General's office.
The State's Motion to Dismiss
On November 9, 2018, the State moved to dismiss the claim as untimely filed with the Court on September 25, 2018 and untimely served upon the Attorney General's office on October 3, 2018, which was not within 90 days after the October 6, 2016 date of accrual of the claim. The State's assertion of untimeliness rests upon the basis that the Notice of Intention to File a Claim is a nullity and therefore did not extend claimant's time to serve and file a claim (Court of Claims Act § 10 [3]). The State maintains that the Notice of Intention to File a Claim was a nullity because, while the State was named in the caption, the Notice of Intention to File a Claim did not allege any wrongdoing on the part of the State. Rather, the Notice of Intention to File a Claim asserts only recklessness and/or negligence on the part of the Village of Suffern, Town of Ramapo and/or the County of Rockland.
An amended claim was filed with the Court on November 20, 2018 and served upon the Attorney General's office on November 21, 2018 (Claimant's Ex. E). The amendment added "in Suffern, New York" to paragraphs two and three of the claim.
Claimant opposes the State's motion to dismiss and argues that the Notice of Intention to File a Claim is sufficient "on its face" because the caption names only the State of New York and the Notice of Intention to File a Claim contained allegations of negligence, albeit attributed to the Village of Suffern, Town of Ramapo and/or the County of Rockland (Claimant's Attorney's Supporting Affirmation, ¶¶ 25, 27). Claimant maintains that it was a mere "typographical error" to omit the State of New York in the allegations of wrongdoing and to attribute those acts only to the Village of Suffern, Town of Ramapo and/or the County of Rockland (id. at 23, 24, 27). Thus, claimant contends that the Notice of Intention to File a Claim was not a nullity and afforded claimant two years after the date of accrual to serve and file a claim and that the claim was timely served and filed within that time period (Court of Claims Act § 10 [3]). Claimant further contends that it timely served and filed its amended claim within the permissible time period to amend the claim as of right (CPLR 3025; Uniform Rules of the Court of Claims, § 206.7 [b]).
Analysis
Claimant relies upon Schwartzberg v State of New York, 121 Misc 2d 1095 [Ct Cl 1983] and the Schwartzberg Court's analysis under the two-prong test set forth in Matter of Great E. Mall v Condon, 36 NY2d 544 [1975], for the proposition that claimant's error in its Notice of Intention to File a Claim attributing all wrongdoing to the Village of Suffern, Town of Ramapo and/or the County of Rockland instead of the State, was a mere typographical error and did not render the Notice of Intention to File a Claim a nullity because the State was named in the caption of claimant's Notice of Intention to File a Claim. Claimant's reliance upon Schwartzberg and its analysis employing the two-prong test set forth in Matter of Great E. Mall is misplaced because the facts presented in this matter are distinguishable from the facts presented in Schwartzberg.
In Schwartzberg, the Notice of Intention to File a Claim named the State of New York as a defendant and was not otherwise deficient. Thereafter, a claim was timely served and filed. The claim, however, named four individual State employees in the caption, but not the State. This was the error before the Court in Schwartzberg. Thereafter, claimant served and filed a timely amended claim naming the State of New York as the sole defendant. The State moved to dismiss, arguing that claimant's failure to include the State of New York in the caption of the claim was a jurisdictional defect and therefore the amendment to that claim to include the State of New York in the caption was not permissible because a jurisdictionally defective claim cannot be amended to cure a such defect. The Schwartzberg Court held that the failure to name the State in the caption of the claim was not a jurisdictional defect and that jurisdiction was obtained by service upon the State as a proper party defendant. In its reasoning, the Schwartzberg Court noted that the claim referred to the Notice of Intention to File a Claim, which had named the State of New York in the caption and included allegations of wrongdoing by the State. The Schwartzberg Court also applied the two-prong test set forth in the Court of Appeals decision in Matter of Great E. Mall and held that, under the circumstances presented in Schwartzberg, the State had been given 1) adequate notice of the commencement of the proceeding and 2) was not caused to suffer any substantial prejudice by the irregularity in failing to name the State of New York in the caption of the claim when the State had been named in the caption of the Notice of Intention to File a Claim and the allegations of wrongdoing contained therein were attributed to the State.
As previously noted, Schwartzberg is distinguishable from this matter because Schwartzberg did not address a defective Notice of Intention to File a Claim which failed to allege any wrongdoing by the State. By contrast, Schwartzberg addressed merely a deficient caption of the claim. Accordingly, the Court does not find claimant's arguments, based upon the holding in Schwartzberg and the application of the two-prong test set forth in Matter of Great E. Mall, to be persuasive.
A Notice of Intention to File a Claim is not a pleading and therefore "need not meet the more stringent requirements imposed upon [a claim]" (Court of Claims Act § 11; Epps v State of New York, 199 AD2d 914 [3rd Dept 1993]; see also Czynski v State of New York, 53 AD3d 881, 882-883 [3d Dept 2008]). The purpose of the Notice of Intention to File a Claim is to give the State prompt notice of an occurrence and an opportunity to investigate the facts to determine the existence and extent of its liability (see Sommer v State of New York, 131 AD3d 757 [3d Dept 2015]; Czynski, 53 AD3d 881). In this matter, the Court finds that the Notice of Intention to File a Claim failed to serve the intended purpose of a Notice of Intention to File a Claim and did not meet the requirements of Court of Claims Act § 11 (b); therefore the Notice of Intention to File a Claim was a nullity.
Accordingly, because the Court finds that the Notice of Intention to File a Claim was a nullity, the Notice of Intention to File a Claim did not extend claimant's time to serve and file a claim (see Sommer, 131 AD3d 757; Langner v State of New York, 65 AD3d 780 [3d Dept 2009]; Czynski, 53 AD3d 881). Thus, the claim is untimely because it was not served and filed within 90 days after the claim accrued on October 6, 2016.
Both service and filing of the claim must occur within the statutory time period mandated by the Court of Claims Act (see Dreger v New York State Thruway Auth., 81 NY2d at 724). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-98 [2d Dept 2001]). Thus, the claim warrants dismissal because it is jurisdictionally defective.
Accordingly, the State's motion to dismiss is hereby GRANTED.
Claimant's Cross-Motion
Alternatively, claimant cross-moves for leave to: either amend the Notice of Intention to File a Claim by deleting all references to the Village of Suffern, Town of Ramapo and/or the County of Rockland and substituting the State of New York (Claimant's Ex. F) or for permission to serve and file a late claim in the same form as the amended claim (Claimant's Ex. E).
Analysis
A Notice of Intention to File a Claim is not a pleading and there is no provision in the Court of Claims Act for permitting an amendment of a Notice of Intention to File a Claim (see Sparks v State of New York, UID No. 2017-053-538 [Ct Cl, Sampson, J., July 20, 2017]; Camara v State of New York, UID No. 2016-049-023 [Ct Cl, Weinstein, J., June 17, 2016]; Liberty Mutual v State of New York, UID No. 2014-016-022 [Ct Cl, Marin, J., June 24, 2014]).
Accordingly, claimant's cross-motion for leave to amend the Notice of Intention to File a Claim is DENIED.
With regard to claimant's application for late claim relief, claimant seeks an order deeming that the claim and amended claim were filed nunc pro tunc. Such relief is not available in the Court of Claims and that branch of claimant's application is DENIED.
However, pursuant to Court of Claims Act § 10 (6), a movant may seek an order from the Court permitting service and filing of a late claim in the same form as a proposed claim submitted with the application. Here, claimant asks the Court to consider the amended claim as the proposed claim (Court of Claims Act § 10 [6]; Claimant's Ex. E).
Court of Claims Act § 10 (6) requires the Court to consider, among other relevant factors, the following six factors set forth in the aforenoted section of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" and movant's own unsubstantiated allegations do not show an appearance of merit (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]; Klingler v State of New York, 213 AD2d 378 [2d Dept 1995] [movant's unsupported opinion does not suffice to establish merit of their claim]).
In the case at bar, claimant has not submitted any photographs of the allegedly dangerous condition, an accident report, a witness statement, or any other evidence that the area was owned or maintained by the State. Nor has claimant submitted any medical records indicating a causal relationship between the alleged defect and her injuries. Rather, claimant submitted only the transcript of her deposition testimony (Claimant's Ex. B). In sum, claimant's self-serving deposition testimony is without sufficient detail to establish any link between any negligence attributable to the State and claimant's accident and resulting injuries (see Montas v JJC Constr. Corp., 20 NY3d 1016 [2013] [defendant awarded directed verdict where pedestrian who slipped on construction debris while crossing the street could not establish the source of the debris]).
The Court considered of all the factors set forth in Court of Claims Act § 10 (6), despite the parties' failure to address each of them with particularity. While no one factor is determinative, the most significant factor which weighed heavily in the Court's determination was claimant's failure to establish the appearance of merit of the proposed claim (see Morris v Doe, 104 AD3d 921 [2d Dept 2013]). Thus, the Court concludes that claimant has not established that her late claim application should be granted (see Savino v State of New York, 199 AD2d 254 [2d Dept 1993] [futile to permit filing of claim where movant did not submit evidence that State was responsible for maintenance of accidents site]).
Accordingly, claimant's motion for late claim relief is DENIED.
April 18, 2019
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims