Opinion
# 2019-044-510 Claim No. 130774 Motion No. M-93364
02-19-2019
KARA WALKER v. THE STATE OF NEW YORK
THE LAW OFFICES OF GERALD P. GROSS, P.C. BY: Gene R. Berardelli, Esq. HON. LETITIA JAMES, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General
Synopsis
Late claim motion granted.
Case information
| UID: | 2019-044-510 |
| Claimant(s): | KARA WALKER |
| Claimant short name: | WALKER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130774 |
| Motion number(s): | M-93364 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | THE LAW OFFICES OF GERALD P. GROSS, P.C. BY: Gene R. Berardelli, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 19, 2019 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed a "Notice of Claim" to recover for personal injuries allegedly received when she fell from the stage at the Watters Theater in the Fine Arts Building while a student at the State University of New York at Binghamton (BU). Defendant State of New York (defendant) answered and asserted several affirmative defenses, including that neither a notice of intention nor a claim was timely served. Claimant now moves for permission to file and serve a late claim. Defendant opposes the motion. Claimant replies.
Notwithstanding claimant's use of incorrect terminology for practice in the Court of Claims, the Clerk of the Court treated the notice of claim as a claim and assigned it Claim No. 130774. Accordingly, the Court will refer to document as Claim No. 130774 throughout this Decision and Order.
Claimant's notice of motion contains a seven-day demand and a motion return date of January 16, 2019. Because the motion was served by mail on December 11, 2018 (more than 21 days before the return date), defendant was required to serve its opposition papers seven days before the return date. However, this Court did not have motions returnable on January 16, 2019. Accordingly, the Clerk of the Court assigned the next available return date of January 23, 2019. Unfortunately, the letter officially calendaring this motion for that date and assigning it a motion number was dated January 14, 2019 and did not provide defendant with sufficient time to serve its opposition papers in a timely manner, i.e. by January 16, 2019. Because neither party could be certain of the return date or the motion number until the Clerk so advised and neither party has suffered any prejudice, the Court will consider both defendant's opposition and claimant's reply papers in determining the merits of this motion.
In Claim No. 130774, claimant alleges that she was attending a mandatory rehearsal for a homecoming performance at the Watters Theater on October 7, 2017. She asserts that after the rehearsal, she fell from the stage and was injured due to defendant's negligence in (among other things) causing and/or allowing the stage to be overcrowded and failing to erect barricades on the stage.
In an action to recover damages for personal injuries caused by the unintentional (negligent) conduct of an officer or employee of the State, a claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3]).
Claimant's cause of action accrued on October 7, 2017. In order to be timely, the claim must have been filed and served or a notice of intention served by January 5, 2018. There is no indication that a notice of intention was served. Moreover, although Claim No. 130774 was filed on January 2, 2018, it was not served until January 8, 2018. Accordingly, Claim No. 130774 is untimely on its face.
Verified Answer, ¶ 5; Affirmation of Assistant Attorney General (AAG) Mark Sweeney, dated Jan. 18, 2019, in Opposition to Motion, Exhibit B, at 8.
The Court notes that defendant did not specifically move to dismiss the claim as untimely filed and/or served. However, defendant properly asserted in its Verified Answer that neither the claim nor a notice of intention was timely served, and thus preserved that defense pursuant to Court of Claims Act § 11 (c). The Court may therefore address this issue sua sponte (Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 670-671 [3d Dept 1997]). Given claimant's failure to timely serve a notice of intention, or to timely file and serve a claim, this Court lacks subject matter jurisdiction regarding this action (see Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Tooks v State of New York, 40 AD3d 1347 [3d Dept 2007], lv denied 9 NY3d 814 [2007]). Accordingly, Claim No. 130774 is dismissed in its entirety.
The Court must now address claimant's motion for permission to file and serve a late claim. 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]). As set forth previously herein, claimant's proposed cause of action for negligence accrued on October 7, 2017. The applicable statute of limitations for a cause of action alleging negligence is three years (CPLR 214 [5]). Accordingly, this motion mailed on December 11, 2018 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.
Claimant argues that the delay in serving the claim is excusable because counsel timely mailed the claim on January 3, 2018 and it arrived in the Attorney General's Office only one business day late. Pursuant to Court of Claims Act § 11 (a) (i), the claim is not served until it is received in the Office of the Attorney General. In this case, that was on January 8, 2018, three days late. Neither ignorance of the law (Matter of E.K. v State of New York, 235 AD2d 540, 541 [2d Dept 1997], lv denied 89 NY2d 815 [1997]; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]) nor law office failure are adequate excuses for failing to comply with the filing or service requirements of Court of Claims Act §§ 10 and 11 (see generally Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Nyberg v State of New York, 154 Misc 2d 199, 200 [Ct Cl 1992]). Accordingly, this factor weighs against claimant.
Claimant's counsel speculates that there was "a delay in mail delivery by the U.S.P.S., due in part to the weekend backlog" (Affirmation of Gene R. Berardelli, Esq., dated Dec. 11, 2018, in Support of Motion, ¶ 24).
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 claimant.
Affirmation of AAG Mark Sweeney, dated Jan. 18, 2019, in Opposition to Motion, ¶ 15.
Another factor to be considered is whether claimant has any other available remedy. Claimant is seeking damages for personal injuries allegedly received while on the campus of a State University. Defendant concedes that there is no other available remedy. This factor also weighs in favor of claimant.
Id., ¶ 21.
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 claimant 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, 154 Misc 2d at 202-203).
In order to set forth a cause of action in negligence, claimant must demonstrate that defendant's breach of a duty owed to her was the proximate cause of her injuries (Murray v New York City Hous. Auth., 269 AD2d 288, 289 [1st Dept 2000]). To the extent that claimant is alleging that a dangerous condition existed on the campus, 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 type of claim, claimant 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 claimant 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]).
While facts stated in a motion for leave to file a late claim against the State are normally deemed true for purpose of the motion, this rule is only applicable where such statements are made by an individual with first-hand knowledge of the facts in question (Jolley v State of New York, 106 Misc 2d 550, 551-552 [Ct Cl 1980]). Because the proposed claim is not verified by claimant, the Court will not consider the allegations contained in that document. However, claimant has submitted an affidavit in support of this motion and the Court will address the issue of merit based upon her affidavit.
Claimant states that as a member of the BU Student Chorus, she was required to attend a mandatory rehearsal at the Watters Theater on October 7, 2017. Claimant asserts that the students were required to rehearse on the stage. She notes that there was a large piano and other music equipment on the stage, as well as some space for the orchestra and a limited number of chorus members. There were also risers on the stage for the majority of the additional chorus members who were not located directly on the stage floor. Claimant alleges that once the entire chorus was on the stage, she did not have any space to stand on the risers. As a result, William Culverhouse, BU's Director of Choral Activities, directed claimant to stand between the risers and the edge of the stage, adjacent to a stairwell. Claimant indicates that Culverhouse also gave her a music stand to use for her sheet music. Claimant states that because the stage was overcrowded with people, music equipment, and the risers, there was no space for people to pass in the area where she was standing.
Claimant notes that during the rehearsal, Culverhouse instructed the chorus members in the manner in which they were to proceed onto the stage. Once on the stage, they rehearsed the songs they would be performing. Claimant asserts that when they concluded the rehearsal, Culverhouse "briskly dismissed the chorus," but did not direct the manner in which the members were to exit the stage. Claimant states that upon being dismissed, a large number of members began quickly moving towards her in a disorganized manner so that they could use the stairwell located next to her to leave the stage. Claimant alleges that as a result of the unorganized manner in which the students were moving, there was a chaotic bottleneck at the stairwell such that students were pushing her and her music stand as they attempted to get off the stage. Claimant indicates that although she tried to get out of the way, the forward physical momentum of the oncoming crowd forced her to step backwards, off the edge of the narrow part of the stage. Claimant asserts that she rolled her ankle and fell to the floor below. Claimant does not know the identity of any of the students in the vicinity who may have pushed or otherwise caused her to fall from the stage.
Affidavit of Kara Walker, sworn to Nov. 9, 2018, in Support of Motion, ¶ 9. --------
Claimant alleges that after she fell, Culverhouse approached her and advised that the student ambulance service had been called and would take her to the hospital. He also requested that she contact him to apprise him of her condition. Claimant states that the ambulance transported her to the emergency room where she was treated for, among other things, a fractured right ankle, a fractured fifth metatarsal in her left foot, and a right shoulder separation with partial tear.
Claimant indicates that she notified Culverhouse by email that she would be out of school for a week. She states that he contacted her three days later to inquire whether he could share her condition with the Chair of the Music Department. Claimant notes that she was not contacted any further by Culverhouse or the Chair. However, she was contacted by BU's Assistant Director of Services for Students with Disabilities, Jeremy Pelletier. Claimant asserts that Pelletier authorized her to obtain transportation assistance to and from the campus using BU's transportation service.
Claimant has set forth allegations that defendant's employees prepared the stage for rehearsal by placing risers and musical equipment on it, and also directed the participants on how to enter the stage and where to position themselves. In particular, claimant was allegedly required to stand in a narrow area next to a stairwell. She further asserts that at the conclusion of the rehearsal, the participants were dismissed without any direction as to how to exit the stage. Due to the allegedly unorganized mass exodus, claimant fell from the stage and suffered serious injuries. Claimant's assertions have not been contradicted or denied in an answering affidavit by a representative of defendant with personal knowledge of the situation. Accordingly, these statements are deemed true for the purposes of this motion (see 247-59 W., LLC v State of New York, 27 Misc 3d 570 [Ct Cl 2010]; Nyberg, 154 Misc 2d at 202; see also Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]; Alcaido v State of New York, UID No. 2012-041-070 [Ct Cl, Milano, J., Aug. 28, 2012]). The Court finds that at this early stage in the litigation, claimant has established at least the initial appearance of merit. Accordingly, this factor weighs in claimant's favor.
The Court finds that five of the six factors, including the most crucial factor of merit, weigh in claimant's favor. Claimant's motion for permission to file and serve a late claim is granted. Claimant is directed to serve a claim containing the information required by Court of Claims Act § 11 (b) upon the Attorney General, and to file said claim with proof of service with the Clerk of the Court of Claims, all within 30 days from the date of filing of this Decision and Order. The service and filing of the claim shall be performed pursuant to the strict requirements of the Court of Claims Act.
February 19, 2019
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion: 1) Notice of Motion filed December 17, 2018; Affirmation of Gene R. Berardelli, Esq., dated December 11, 2018, and attached exhibits; Affidavit of Kara Walker, sworn to November 9, 2018. 2) Affirmation in Opposition of Mark Sweeney, AAG, dated January 18, 2019, and attached exhibits. 3) Reply Affirmation of Gene R. Berardelli, Esq., dated January 22, 2019. Filed Papers: Claim filed January 2, 2018; Verified Answer filed February 8, 2018.