Opinion
# 2017-044-567 Claim No. None Motion No. M-90499
09-06-2017
PATRICIA SELLEVOLD v. THE STATE OF NEW YORK
STANLEY LAW OFFICES, LLP BY: Robert A. Quattrocci, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Claimant's second motion for permission to file/serve late claim for injuries received when fire extinguisher fell off wall at university denied, without prejudice.
Case information
| UID: | 2017-044-567 |
| Claimant(s): | PATRICIA SELLEVOLD |
| Claimant short name: | SELLEVOLD |
| 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-90499 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | STANLEY LAW OFFICES, LLP BY: Robert A. Quattrocci, Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 6, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant moves for permission to file and serve a late claim to recover for personal injuries allegedly received when, on June 16, 2016, a fire extinguisher fell from the wall and onto her while she was a student at Binghamton University and seated on the floor of a hallway outside of Lecture Hall 10. Defendant State of New York (defendant) opposes the motion.
The Court notes that movant's previous motion for permission to file and serve a late claim was denied, without prejudice (Sellevold v State of New York, UID No. 2017-044-500 [Ct Cl, Schaewe, J., Jan. 17, 2017]). The Court also notes that the proposed claim, attached as Exhibit B to the motion papers, incorrectly states that the incident occurred in Lecture Hall 10 of "the State University of New York, Syracuse, New York," rather than at Binghamton University as set forth in movant's affidavit (Proposed Claim, ¶ 3).
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). Movant asserts that the allegedly wrongful conduct occurred on June 16, 2016. The statute of limitations for a negligence cause of action is three years (CPLR 214 [5]). Accordingly, this motion, mailed on May 22, 2017, is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) 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 defendant; and
6) movant has any other available remedy.
As an initial matter, 22 NYCRR 130-1.1a (a) provides that:
[e]very pleading, written motion, and other paper, served on another party or filed or submitted to the court shall be signed by an attorney . . . with the name of the attorney . . . clearly printed or typed directly below the signature. Absent good cause shown, the court shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney . . . .
Counsel for movant has failed to sign his affirmation submitted in support of this motion. Notwithstanding that defense counsel notified movant's counsel of the omission in the opposition papers mailed on June 19, 2017, movant's counsel has failed to correct the defect. Accordingly, the purported affirmation of Robert A. Quattrocci, Esq. is hereby stricken and will not be considered in the determination of this motion.
Movant has failed to offer any excuse for her delay in timely filing the claim. Moreover, a movant's ignorance of the requirements of the Court of Claims Act is not an adequate excuse for the delay in timely serving a notice of intention to file a claim, or in timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]). Accordingly, this factor weighs against movant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. For the purposes of this motion, defendant concedes that it had notice of the essential facts constituting the claim as well as an opportunity to investigate and that there is no prejudice to the State. Thus, these three factors weigh in favor of movant.
Another factor to be considered is whether movant has any other available remedy. Movant is seeking damages for personal injuries allegedly received when she was injured while on the campus of a State University. Defendant concedes that there is no other available remedy. This factor also weighs in favor of movant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a movant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992]).
The State, as a landowner, has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]; see also Clairmont v State of New York, 277 AD2d 767 [3d Dept 2000], lv denied 96 NY2d 704 [2001]). To prevail on this claim, movant must establish by a preponderance of the credible evidence that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that movant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]).
In her proposed claim, movant alleges that she was attending a class in Lecture Hall 10 when the professor divided the class into small groups. Movant indicates that she and her classmates were sitting on the floor in a hallway. She asserts that when she repositioned herself on the floor, she came into contact with a fire extinguisher which was on the wall. The fire extinguisher fell and caused serious injuries to her right hand and wrist. She alleges that defendant was negligent in failing, among other things, to properly secure, maintain, and inspect the fire extinguisher. She further indicates that defendant had actual and/or constructive notice of the dangerous condition.
Movant has also submitted an affidavit in support of the motion reiterating the allegations of the proposed claim. She states Rosa Darling (her professor) and several classmates witnessed the incident. Movant notes that Darling investigated the incident and indicated that the fire extinguisher had not been properly attached to the wall. Movant also indicates that since her incident, "the University has changed how these extinguishers are attached to the wall."
Affidavit of Patricia Sellevold, sworn to May 22, 2017, in Support of Motion, ¶ 4.
As set forth previously herein, movant's prior motion for permission to file and serve a late claim was denied, without prejudice. This Court specifically found that although [m]ovant's factual allegations that the fire extinguisher fell off the wall with only a minimal amount of contact could be sufficient to establish the existence of a dangerous condition (that it was not properly fastened to the wall), and that she suffered injuries as a result[,] [the motion was] completely devoid of any allegations that defendant had notice, either actual or constructive of the alleged dangerous condition (Sellevold, UID No. 2017-044-500 at 3).
Because the proposed claim and movant's affidavit in support of this motion are virtually identical to the documents submitted in support of the previous motion, this motion suffers from the same deficiency. To constitute constructive notice, a dangerous condition must have been visible and apparent and must have existed for a sufficient amount of time prior to the accident for defendant to discover and remedy it. The proposed claim contains no allegations sufficient to conclude that defendant was either aware or had notice of any dangerous condition. The conclusory allegation that defendant had actual or constructive knowledge of the condition does not suffice. Without any evidence of actual or constructive notice, movant has failed to establish even the initial appearance of merit. Accordingly, the crucial factor of merit weights against movant.
Although four of the six statutory factors weigh in favor of movant, the crucial issue of merit weighs against her. "[W]here 'the excuse offered for the delay is inadequate and the proposed claim is of questionable merit' " (Matter of Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006], quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]), denial of a late claim application is appropriate (see Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]).
Movant's Motion No. M-90499 for permission to file and serve a late claim is denied, without prejudice to making another motion for such relief upon proper papers.
The Court notes that even if it had considered Attorney Quattrocci's "affirmation," the motion would nevertheless be denied. Counsel argues that the allegations of the proposed claim are sufficient because without discovery, movant does not have access to any details concerning the maintenance and/or installation of the fire extinguisher. Counsel also asserts that Darling stated that the extinguisher was not properly installed. Neither of these contentions are persuasive. Even considering counsel's assertions, the motion does not contain allegations sufficient to establish any evidence of actual or constructive knowledge on the part of defendant. Moreover, Darling's statement is hearsay. In any event, a party moving for permission to file and serve a late claim bears a heavier burden to put forth allegations establishing a meritorious cause of action than a claimant who has timely filed and served a claim (see supra at 4). --------
September 6, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on movant's motion: 1) Notice of Motion filed on May 24, 2017; Unsigned "Affirmation" of Robert A. Quattrocci, Esq., dated May 22, 2017 and attached exhibits; Affidavit of Patricia Sellevold, sworn to on May 22, 2017. 2) Affirmation in Opposition of Douglas H. Squire, Assistant Attorney General, dated June 19, 2017, and attached exhibit.