New York State Court of Claims

New York State Court of Claims

RAPHAEL v. THE STATE OF NEW YORK, #2000-001-083, Claim No. 102797, Motion Nos. M-62212, CM-62513


Synopsis


Defendant's motion to dismiss the claim is granted and claimant's cross- motion for permission to file a late claim is denied.

Case Information

UID:
2000-001-083
Claimant(s):
ELLEN RAPHAEL
Claimant short name:
RAPHAEL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102797
Motion number(s):
M-62212
Cross-motion number(s):
CM-62513
Judge:
Susan Phillips Read
Claimant's attorney:
Carol M. Dillon, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Eileen E. Bryant, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
January 4, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant's motion to dismiss the claim pursuant to CPLR 3211 and Court of Claims Act §§ 10 and 11, and claimant's cross- motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6): Notice of Motion to Dismiss, dated August 17 and filed August 18, 2000; Affirmation in Support of Motion to Dismiss of Eileen E. Bryant, Esq., AAG, dated August 17 and filed August 18, 2000, with annexed Exhibit A; Notice of Cross-Motion, dated October 8 and filed October 10, 2000; Affirmation in Opposition to Defendant's Motion and in Support of Cross-Motion of Carol M. Dillon, Esq., affirmed October 8 and filed October 10, 2000, with annexed Exhibits A-N; Affidavit of Ellen Raphael, sworn to October 8 and filed October 10, 2000; Affirmation in Opposition to Claimant's Cross-Motion of Eileen E. Bryant, Esq., AAG, dated November 15 and filed November 16, 2000; and the claim, affirmed July 24 and filed July 25, 2000.

Claimant Ellen Raphael ("claimant") alleges negligence on the part of the State of New York ("defendant" or "the State") for its failure to light, adequately construct, maintain and repair and provide a handrail for a walkway located within Saratoga Spa State Park ("the park"); and for its failure to warn of the walkway's dangerous condition (the claim, affirmed July 24 and filed July 25, 2000 ["claim"], ¶ 3 [A-D]). As a consequence of the State's negligence, claimant avers that she injured herself in a trip and fall accident that occurred while she was traveling on the walkway en route to a parking lot after attending a concert at Saratoga Performing Arts Center ("SPAC") on the night of August 2, 1998 (claim, ¶¶ 3-4).

The State moves to dismiss the claim pursuant to Court of Claims Act §§ 10 and 11 based on a deficient description of both the accident and the location where it was alleged to have occurred within the park (Affirmation in Support of Motion to Dismiss of Eileen E. Bryant, Esq., AAG, dated August 17 and filed August 18, 2000, with annexed Exhibit A ["Bryant Aff."], ¶¶ 3-10). Claimant opposes this motion (Affirmation in Opposition to Defendant's Motion and in Support of Cross Motion of Carol M. Dillon, Esq., affirmed October 8 and filed October 10, 2000, with annexed Exhibits A-N ["Dillon Aff."], ¶¶ 6-8) and, alternatively, cross moves for permission to file a late claim (Dillon Aff., ¶¶ 9-19).

I.
Defendant's Motion to Dismiss the Claim

The claim states that "claimant left on foot from [SPAC], in Saratoga County, and was walking on a walkway en route to the parking lot on state-owned property" (claim, ¶ 3 [A]). There is no further description of where within the park the accident took place. Similarly, the Notice of Intention served upon the State lacks any description as to the accident's location, stating only that claimant suffered injury on "a walkway located at the Saratoga Spa State Park" (Dillon Aff., Exh. B, ¶ 4). The notice is equally uninformative about the type of accident alleged to have taken place, stating only that claimant "suffered severe personal physical injuries due to the negligence of [the State]" (Dillon Aff., Exh. B, ¶ 4).

"Pursuant to Court of Claims Act 11 (b), a notice of intention to file a claim and a claim must set forth, inter alia, the ‘place where such claim arose' and ‘the nature of same'. The purpose of the section 11 (b) pleading requirements is to provide a sufficiently detailed description of the particulars of the claim to enable the State to investigate and promptly ascertain the existence and extent of its liability" (Sinski v State of New York, 265 AD2d 319, citing Sheils v State of New York, 249 AD2d 459; Sega v State of New York, 246 AD2d 753, lv denied 92 NY2d 805). When, as here, the alleged event took place in a public area (i.e., parks, trails or roads open to the public), claimant must describe a specific location in order to facilitate the State's ability to investigate. "[T]he condition must be described so an investigator has an indication of what to look for. An open, public area requires greater specificity because the defendant has no ability to ascertain what occurred by simply going to a designated place" (Cannon v State of New York, 163 Misc 2d 623, 627).

The notice of intention and the claim both failed to meet the standard of specificity required by Court of Claims Act § 11 (b): even a cursory review of the map of the park attached to the State's Motion to Dismiss (Bryant Aff., Exh. A) reveals, as defendant notes (Bryant Aff.,¶¶ 6, 8), numerous parking areas and walkways (see, e.g., Schneider v State of New York, 234 AD2d 357). While defendant must attempt to investigate an alleged accident before claiming it cannot do so (see, Cannon v State of New York, supra, at 627), it "‘is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11'" (Cobin v State of New York, 234 AD2d 498, 499, lv dismissed 90 NY2d 925, quoting Grande v State of New York, 160 Misc 2d 383, 386).

Moreover, the notice of intention failed to set forth the general nature of the claim (Court of Claims Act § 11[b]): the broad statement that claimant "suffered severe personal physical injuries due to the negligence of [the State]" contained in the notice of intention (Dillon Aff., Exhibit B, ¶ 4) does not provide "even a hint indicating ‘the manner in which the claimant was injured and how the State was negligent'" (Sega v State of New York, 246 AD2d 753, 755, supra, quoting Heisler v State of New York, 78 AD2d 767, 767-768).

II.
Claimant's Cross Motion for Permission to File a Late Claim

Perhaps recognizing that her initial pleadings were deficient, claimant also cross-moved for permission to file a late claim as part of her opposition papers. Claimant argues that permission to file a late claim should be granted because the claim has substantial merit (Dillon Aff., ¶ 13); it is "highly likely" that the State has records of repairs made to the walkway and "the State had notice of all the essential facts constituting the claim, other than claimant's injury" (Dillon Aff., ¶ 14); the delay in filing the claim is excusable because she was unaware of the pleading requirements of the Court of Claims Act (Dillon Aff., ¶ 15); although the State was not obligated to seek further information from claimant, it had an opportunity to do so (Dillon Aff., ¶ 16); and "[u]pon information and belief, no substantial prejudice has occurred to the state, in this relatively straightforward ‘slip and fall' case" (Dillon Aff., ¶ 17). Defendant opposes claimant's cross motion, arguing that it is premature (Affirmation in Opposition to Claimant's Cross-Motion of Eileen E. Bryant, Esq., AAG, dated November 15 and filed November 16, 2000 ["Bryant Aff. in Opp."], ¶¶ 3-4, 7); the proffered excuse for the delay is not reasonable (Bryant Aff. In Opp., ¶¶ 7-8); and defendant did not have notice of the claim's essential facts (Bryant Aff. in Opp., ¶¶ 11-15), which precluded its ability to investigate (Bryant Aff. In Opp., ¶¶ 16-17) and caused prejudice because, as claimant acknowledges, the alleged defective condition was altered by repairs after her claim arose (Bryant Aff. in Opp., ¶¶ 26-27).

In deciding claimant's motion for permission to file an untimely claim, the Court must consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 1) whether the delay in filing the claim was excusable; 2) whether defendant had notice of the essential facts constituting the claim; 3) whether defendant 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 defendant; and 6) whether the claimant has another available remedy. The Court in the exercise of its discretion balances these factors and, as a general rule, the presence or absence of any one factor is not dispositive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Turning to the first factor, the Court notes that counsel's unfamiliarity with the pleading requirements of Court of Claims Act § 11 (b) does not relieve claimant or her counsel of the responsibility to comply with these provisions when drafting the notice of intention and the originally filed claim. Thus, this factor weighs against claimant's motion.

The second, third and fifth factors (whether defendant had notice of the essential facts constituting the claim; whether defendant had an opportunity to investigate the circumstances underlying the claim; and whether claimant's delay resulted in substantial prejudice to defendant) are related and will be considered together (see, Ridore v State of New York, Ct Cl, unreported decision filed July 27, 2000, Marin, J., Motion No. M-61488).

As set forth in section I, supra, claimant's notice of intention, served upon defendant on October 30, 1998 (Bryant Aff., ¶ 3), did little, if anything, to inform the State of any facts necessary to commence an investigation of the alleged injury. All that was revealed to defendant was that at some indeterminate location in the park, some unspecified negligent act or inaction on the part of the State was alleged to have caused an undescribed injury to claimant (see, Dillon Aff., Exh. B). When she filed her claim some 20 months later, claimant for the first time stated that she had tripped and fallen on a defective walkway. The claim, however, still did not sufficiently describe where within a sizable park the accident took place (see, Schneider v State of New York, 234 AD2d 357, supra [description of "in the picnic area adjacent to the parking area" insufficient when state park had numerous picnic areas adjacent to parking lots throughout park]). Only when faced with the State's motion to dismiss did claimant provide more specific information as to where within the park her claim arose.

Claimant's supposition that the State likely has records of subsequent repairs made to the walkway does not establish "notice of all the essential facts constituting the claim, other than the claimant's injury" (Dillon Aff., ¶ 14). The mere fact that defendant owned and maintained the facility, standing alone, does not suggest that the State had actual knowledge of the facts underlying this claim (see, Turner v State of New York, 40 AD2d 923; Crane v State of New York, 29 AD2d 1001). Unlike the situations presented in cases such as Matter of Crawford v City Univ. of N. Y. (131 Misc 2d 1013) or Avila v State of New York (131 Misc 2d 449), there was no prompt reporting of this incident or filing of an accident report with responsible personnel to establish sufficient notice, facilitate investigation or leave a documentary record. Accordingly, the second and third factors weigh against claimant's cross motion.

Concomitantly, defendant's plight is further complicated by the repair of the allegedly deficient walkway subsequent to claimant's accident, as explained in her affidavit and shown in attached photographs (Affidavit of Ellen Raphael, sworn to October 8 and filed October 10, 2000 ["Raphael Aff."], ¶ 6, Exhs. E and F). The Court recognizes that these alterations in the accident scene are alleged to have been completed within the 90-day period for claimant to file a timely claim (Raphael Aff., ¶ 6); however, claimant's delay in providing sufficient information regarding the claim prevented the State from promptly locating and interviewing witnesses such as the workers who repaved the walkway, who might have testified regarding its condition before it was altered while their memories were still fresh. Thus, the fifth factor weighs against claimant (see, e.g., Torres v City of New York, 260 AD2d 368, 370, lv denied 93 NY2d 815; Matter of Gilliam v City of New York, 250 AD2d 680, 681; Matter of Adams v City of New York, 188 AD2d 414; compare, Weaver v State of New York, 112 AD2d 416 [State could not show prejudice when it had investigated accident scene shortly after expiration of 90-day period, obtained accident report from police and condition of the accident site was no different than on day of the accident]).

The sixth factor, whether claimant has an alternative remedy, weighs in favor of claimant. Likewise, claimant's collective papers seem to meet the "low threshold" (Bernard v State of New York, Ct Cl, unreported decision filed Aug. 8, 2000, Bell, J., Motion No. M-61948) of establishing a meritorious claim within the meaning of Court of Claims § 10 (6) (see, Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

III. Conclusion

Based on the foregoing, the Court grants defendant's motion to dismiss the claim pursuant to Court of Claims Act §§ 10 and 11. Taking into account the six statutorily prescribed factors, the Court finds that on balance these factors weigh against granting claimant's cross motion for permission to file a late claim; therefore, the Court denies claimant's cross motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6).


January 4, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims