Opinion
# 2017-044-566 Claim No. None Motion No. M-90312
09-07-2017
SUSAN ST. JOHN v. THE STATE OF NEW YORK
SCARZAFAVA AND BASDEKIS, PLLC BY: Theodoros Basdekis, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Motion for permission to file/serve late claim to recover for injuries due to fall on stairway granted to limited extent.
Case information
| UID: | 2017-044-566 |
| Claimant(s): | SUSAN ST. JOHN |
| Claimant short name: | ST. JOHN |
| 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-90312 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | SCARZAFAVA AND BASDEKIS, PLLC BY: Theodoros Basdekis, 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 7, 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 she fell while descending a stairway in a building located on real property which houses the Oneonta Job Corps in the Town of Oneonta, Otsego County. Defendant State of New York (defendant) opposes the motion. Movant replies.
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 alleges that she fell on July 12, 2016 due to the defective condition of the stairway. The statute of limitations for a negligence cause of action is three years (CPLR 214 [5]). Accordingly, this motion mailed on April 18, 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) claimant has any other available remedy.
In her proposed claim, movant asserts that the Federal Government leased the real property located at 21 Homer Folks Avenue in Oneonta, New York from defendant in order to operate the Oneonta Job Corps for vocational training. Movant alleges that the Federal Department of Labor contracted with Foxmar, Inc., d/b/a Education and Training Resources (ETR), to operate the Oneonta Job Corps. Movant notes that she was employed by ETR and worked at the Oneonta Job Corps' main facility. She states that on July 12, 2016, she was descending a staircase to exit the building and fell, suffering a serious personal injury.
Movant alleges that after she fell, she limped to a bench and two co-workers, Christina Eastwood and Amanda Reeder, came to her assistance. Movant states that Reeder, an EMT, advised her to go to the emergency room. Movant indicates that she drove herself to Bassett Medical Center Emergency Room where she had X rays and was diagnosed with a trimalleolar fracture with syndemosis tear. She asserts that her ankle fracture required open reduction internal fixation surgery consisting of the insertion of a metal plate and 10 screws. The syndemosis tear was repaired at the same time with the placement of an additional screw. Movant states that she was unable to work from July 12, 2016 through November 14, 2016.
On March 8, 2017, movant underwent a second surgery to remove the screw which repaired the syndemosis tear. Movant states that as of April 7, 2017, she has not been able to return to work. She alleges that she was also advised that further surgery will likely be required in order to remove the plate and 10 screws in her ankle. Movant asserts that she suffers pain, weakness, and limitation in the range of motion of her ankle on a daily basis. She acknowledges that she has a pending Workers' Compensation case, but notes that it does not fully compensate her for the wages she lost. She also states that she has not been compensated for her pain and suffering, loss of enjoyment of life, physical impairment and disfigurement, or her mental pain and emotional anguish.
Movant argues that the delay is excusable because even though she knew her injuries were severe, she initially thought that she would make a full recovery. Movant also states that she reasonably believed that the building in which she fell was owned by the Federal Government rather than defendant. Movant's lack of knowledge of either the actual property owner or the severity of her injuries are not adequate excuses for failing to comply with the filing or service requirements of Court of Claims Act §§ 10 and 11 (Cunningham v State of New York, UID No. 2012-015-292 [Ct Cl, Collins, J., Jan. 24, 2012]; see also Arias v New York City Hous. Auth., 40 AD3d 298 [1st Dept 2007]). 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. Movant argues that except for the installation of anti-slip strips on the stair treads, the condition of the stairway has not changed since her accident. She further notes that all of the pertinent witnesses who assisted her after her fall are still employed at Oneonta Job Corps.
Defendant contends that it did not have notice of movant's accident until it received this motion for late claim relief. Defendant asserts that because the property has been leased to the Federal Government since at least 1978, it does not have records of any work completed on the stairway and thus cannot determine if there were any modifications after movant's fall. Defendant also argues that the lack of notice and an opportunity to investigate will prejudice the State in maintaining a defense.
The Court finds that defendant now has notice of the essential facts of this claim and an opportunity to investigate the matter. As movant aptly notes, defendant apparently has access to the building, as evinced by a photograph of the subject stairway which is attached as Exhibit A to the opposition papers. Moreover, defendant would have a record of any work it performed on the property, and it would not be liable for any modifications made by the Federal Government (see n 6, infra). Accordingly, the Court discerns no prejudice in defendant's ability to maintain a defense at this time. Thus, the three factors of notice, an opportunity to investigate and the lack of prejudice all weigh in favor of movant.
Another factor to be considered is whether movant has any other available remedy. Notwithstanding movant's contention that her Workers' Compensation claim will not compensate her in any manner for pain and suffering and that it will not fully compensate her for her lost wages, the benefits provided certainly constitute a partial alternative remedy (see Matter of Smith v State of New York, 63 AD3d 1524 [4th Dept 2009]; Matter of Lockwood v State of New York, 267 AD2d 832 [3d Dept 1999]). Accordingly, this factor weighs against 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]).
Movant alleges that the staircase was negligently constructed and/or maintained by defendant, specifically noting that it was in violation of both the 1984 and the 2002 versions of the State Uniform Fire Prevention and Building Code (the 1984 Building Code and the 2002 Building Code, respectively), as well as common-law negligence standards.
Movant has also submitted her affidavit in support of this motion in which she elaborates about her incident and includes several photographs of the staircase. Movant states that the staircase is composed of multiple uneven stairs which end just before the doorway. She notes that she was required to pause on the last stair to open the door because the landing was not wide enough for her to step off the last stair until the door was open. She indicates that while she was opening the door to step onto the landing, she lost her balance and fell. Movant also states that the landing area between the last stair and the door is not flush with the ground outside the door. She further notes that the handrail was located too low on the wall for her to grasp it.
In support of this motion, movant has also provided the affidavit of Alden P. Gaudreau, a licensed professional Mechanical Engineer. Gaudreau states that he has reviewed movant's affidavit as well as the attached photographs. He notes that there are at least five risers in the staircase which are all greater than seven inches, except for the top riser which appears to be only three to five inches. Gaudreau asserts that because the tread depth is narrower than 11 inches, there appears to be a deviation between the dimensions of the risers and treads in excess of 0.125 inches. He further indicates that the 2-inch x 4-inch piece of wood attached to the wall for use as a handrail does not extend the entire length of the stairway and also appears to be less than 34 inches above the stairs. Gaudreau also states that the interior landing at the bottom of the stairs is only a few inches long (he opines it should be 36 inches) and that it is not flush with the exterior landing.
Gaudreau indicates that the property was used as a sanitarium prior to being leased to the Federal Government in 1989. He asserts that once the change in use classification occurred, the property should have been brought up to the applicable Building Code, which in this instance would be the 1984 Building Code. Gaudreau lists several violations of both the 1984 Building Code and the 2002 Building Code to support his opinion that on the day of movant's fall, the staircase was in a defective and dangerous condition. More important to this decision, however, is Gaudreau's opinion that regardless of any Building Code violations, the staircase and exit doorway were defective because the handrail was not graspable and did not extend that entire length of the stairway; the stairway and exit doorway did not have a landing at least 36 inches in length; the interior landing was not level with the exterior landing; the treads were less than 9.5 inches, the risers were greater than 7.75 inches; the deviation in the dimension of the stairs was more than 1/8 inch; and the stairs were not uniform in dimensions. Gaudreau opines with a reasonable degree of engineering certainty that movant fell while walking down the staircase because of its defective and dangerous condition.
Contrary to Gaudreau's contention that the building use changed in 1989, defendant's papers show that the initial lease between defendant and the Federal Government commenced in 1978. Accordingly, Gaudreau's argument - that the 1984 Building Code is applicable due to the change in use after that Code was enacted - is inaccurate.
In opposition to this motion, defendant has provided a copy of a Lease dated July 21, 1978 (the 1978 Lease) with two amendments: Lease Amendment No. 1 dated January 2, 1980 and Lease Amendment No. 2 dated April 30, 1981. Defendant has also submitted an undated Lease signed by defendant's Commissioner of General Services on November 6, 1989 and signed on behalf of the United States Department of Labor, Job Corps Region II, by Stanley Belza on April 27, 1990 (the 1989 Lease) as well as a Memorandum of Agreement dated November 6, 1989 (the 1989 Memorandum).
Lease Amendment No. 2, § 2 provides that the State will "provide maintenance, repair and upkeep of the Public Use Areas," which are defined to include "[a]ll roads, roadways, walkways, and associated rights-of-way for vehicular and pedestrian travel and use, [and] ingress and egress located within the Demised Premises." The Demised Premises are defined as including "[a]ll that land with the buildings, structures and improvements thereon . . . leased by the State to the [Federal] Government [in the 1978 Lease]." The 1989 Lease, § 12 provides that the Federal Government is responsible for maintenance and repairs of the Demised Premises, "other than the maintenance and repairs of structural parts of the buildings thereof," which is defendant's responsibility. The lease period of the 1989 Lease was from July 1, 1989 though June 30, 1990. However, pursuant to Section 6 (a) of the 1989 Lease, it could be renewed for 19 consecutive 1-year periods, or through June 2009. The 1989 Memorandum § 2 provides that "the State shall provide maintenance, repair and upkeep of the Public Use Areas" which includes ingress and egress within the Demised Premises. The Public Use Areas and Demised Premises are both defined in the same manner as in the 1978 Lease (the 1989 Lease § 1 [a], [c]).
Lease Amendment No. 2, § 1 (3).
Lease Amendment No. 2, § 1 (1).
Although the Federal Government is apparently still leasing the property, defendant has not provided any further lease or modification agreement extending the 1989 Lease.
Defendant argues that because it has been an out-of-possession landlord for 39 years, movant should set forth a nexus between the State and the allegedly dangerous condition of the staircase. Defendant further contends that the lack of any evidence that defendant either created the allegedly defective condition or had the responsibility to repair it impermissibly shifts the burden to defendant to investigate records which are not in its possession.
Conversely, movant asserts that her allegation that the State constructed the stairway and thus created the dangerous condition is sufficient to provide a nexus to defendant. She also contends that both the 1978 Lease and the 1989 Memorandum require defendant to maintain and repair Public Areas which include the stairway.
Although an out-of-possession landlord is generally not liable for dangerous conditions existing on leased premises after possession of the premises has been transferred to the lessee (Oates v Iacovelli, 80 AD3d 1059, 1060 [3d Dept 2011]; Davison v Wiggand, 247 AD2d 700, 701 [3d Dept 1998]), there is a key exception to that rule. Where the landlord affirmatively created the dangerous condition, the landlord may be liable for personal injuries stemming from that condition. (Boice v PCK Dev. Co., LLC, 121 AD3d 1246, 1248 [3d Dept 2014]). In this case, defendant owns the property, which was used as a sanitarium or hospital before being leased to the Federal Government. In her proposed claim, movant alleges upon information and belief that defendant created the defective staircase and exit doorway. Although movant provides no other evidence that defendant created the condition, defendant has not provided any evidence to the contrary. Defendant's contention that movant's failure to submit such evidence impermissibly shifts the burden to the State to investigate records not in its possession is unpersuasive. It is reasonable to infer that defendant - as the owner of the property which previously had been operated as a sanitarium or hospital for the treatment of tuberculosis - constructed the building, including the subject staircase, prior to leasing the property to the Federal Government in 1978. Moreover, while defendant may not have record of modifications made by the Federal Government, if any, defendant may well be in possession of plans, photographs or sketches of the building during the time period from its original construction through the time the property was leased to the Federal Government. Although it is ultimately movant's burden to establish that defendant created the allegedly defective condition, either in response to a motion for summary judgment or at trial, it is premature for the Court to make a finding that she will not be able to do so as a matter of law before any discovery has taken place. Movant has established at least the initial appearance of merit for a cause of action based upon defendant's alleged negligence in constructing the stairway and/or exit doorway, and thus creating the dangerous condition. Accordingly, the all-important factor of merit weighs in her favor for such a cause of action
People v Chenango County, 39 NYS2d 785 (Sup Ct, Albany County, 1943); see also Koepke v State of New York, UID No. 2005-019-017 (Ct Cl, Lebous, J., Aug. 24, 2005).
The Court notes that defendant would not be liable for unsafe conditions caused by the Federal Government even if the State had notice of the allegedly defective condition (Davison, 259 AD2d at 802; see also Caden v State of New York, UID No. 2008-015-096 [Ct Cl, Collins, J., Dec. 3, 2008]).
Movant also argues that defendant was obligated to maintain and repair the stairway and that its failure to do so in compliance with the 1984 Building Code and/or the 2002 Building Code subjects it to liability. This contention is not sufficient to hold defendant liable as a matter of law. As previously set forth, an out-of-possession landlord may not, as a general rule:
be held liable for a third party's injuries on his premises unless he has notice of the defect and has consented to be responsible for maintenance or repair. However, constructive notice may be found where an out-of-possession landlord reserves a right under the terms of a lease to enter the premises for the purpose of inspection and maintenance or repair, and a specific statutory violation exists. In such [a] case, only a significant structural or design defect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord
(Velazquez v Tyler Graphics, 214 AD2d 489, 489 [1st Dept 1995] [internal citations omitted]; see also Sauer v Mannino, 309 AD2d 1053, 1053-1054 [3d Dept 2003]). Movant makes no allegation that defendant had actual notice of the defect. Defendant does have a right, under the terms of the lease, to enter the premises and make required structural repairs (the 1989 Lease, § 12). Accordingly, the question is whether this particular condition is a significant structural or design defect contrary to a specific statutory safety provision, as a violation of either common-law negligence standards or a regulation is insufficient to impose liability on the out-of-possession landlord. The proposed complaint alleges a duty to repair pursuant to the New York State Uniform Fire Prevention and Building Code (see 19 NYCRR 1219.1), which is a regulation rather than a statute. Consequently, any violation of its requirements is insufficient to impose liability on defendant (Boice, 121 AD3d at 1248; Brown v BT-Newyo, LLC, 93 AD3d 1138 [3d Dept 2012], lv denied 19 NY3d 815 [2012]; Velazquez, 214 AD2d at 490). Movant has failed to establish the appearance of merit with respect to a cause of action based upon any obligation on the part of defendant to repair and maintain the stairway in question. Accordingly, this factor weighs against her.
The Court also questions, based upon the language of the 1989 Lease and its predecessors, whether defendant even had any obligation to maintain or repair the subject stairway. --------
In conclusion, with respect to movant's proposed cause of action for negligent construction of the stairway and/or exit doorway, thus creating a dangerous condition, four of the six factors, including the all-important factor of merit, weigh in movant's favor. However, with regard to the proposed cause of action for negligent maintenance and/or repair of the stairway and/or exit doorway, the Court finds that only three of the six factors weigh in movant's favor, and the crucial factor of merit weighs against her.
Movant's motion for permission to late file a claim is therefore granted solely to the extent that movant shall file a claim containing only a cause of action for defendant's allegedly negligent construction of the stairway and/or exit doorway, and serve a copy of it upon the Attorney General within 40 days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.
September 7, 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 April 20, 2017; Affidavit of Theodoros Basdekis, Esq., sworn to on April 14, 2017, and attached exhibits; Memorandum of Law dated April 14, 2017. 2) Affirmation in Opposition of Douglas H. Squire, Assistant Attorney General, dated June 7, 2017, and attached exhibits. 3) Reply Affirmation of Theodoros Basdekis, Esq., dated June 12, 2017.