New York State Court of Claims

New York State Court of Claims

TOULOUMIS v. New York, #2000-004-501, Claim No. 99647, Motion No. M-60739


Synopsis


Claimants' motion to renew denied.

Case Information

UID:
2000-004-501
Claimant(s):
BETSY TOULOUMIS AND MICHAEL TOULOUMIS
Claimant short name:
TOULOUMIS
Footnote (claimant name) :
Unless otherwise mentioned, references to Claimant herein are to Betsy Touloumis.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99647
Motion number(s):
M-60739
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
JOHN FAZZINI, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: JAMES E. SHOEMAKER, Assistant Attorney-General of Counsel
Third-party defendant's attorney:

Signature date:
April 13, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers are before the Court

Claim, filed January 19, 1999 1


Memorandum-Decision and Order, Hanifin, J., Claim No. 99647,

Motion No. M-59083, Cross-Motion No. CM-59405, filed
July 13, 1999 2


Notice of Motion, with attached exhibits, filed
November 22, 1999 3


Affirmation of Mark Guerra, Esq. in support of
Motion, dated August 19, 1999 4


"AFFIDAVIT OF MERIT" wherein movant "affirms", sworn to
August 25, 1999 5


Affirmation of James E. Shoemaker, AAG, in Opposition to

Claimant's [sic] Motion to Renew its Application to Late File
a Claim, with attached exhibit filed December 8, 1999 6




The Court previously dismissed this Claim. (Paper No. 2) Claimants move to renew.


(Paper No. 3)


Claim recites in pertinent part:

4. That on the 12th day of October, 1998, at approximately 10:10 P.M., claimant BETSY TOULOUMIS was attempting to traverse the roadway/sidewalk area located at THE STATE UNIVERSITY OF NEW YORK AT BINGHAMTON, Binghamton, NY 13902, when she fell as a result of the cracked, uneven, raised, depressed and deteriorated roadway/sidewalk area.

5. That on the 12th day of October, 1998 as a result of said accident, claimant BETSY TOULOUMIS sustained serious injury to her ankle.

6. That the accident, injuries and damages to claimant BETSY TOULOUMIS resulting from the aforementioned accident were caused by the negligence of defendant THE STATE OF NEW YORK, and was in no way contributed to by the claimant herein.

7. That the claimant BETSY TOULOUMIS was injured by and through the carelessness and negligence of the defendant THE STATE OF NEW YORK, in that the defendant and/or its agents or employees failed to properly maintain, repair and/or control the pedestrian roadway/sidewalk area located at STATE UNIVERSITY OF NEW YORK AT BINGHAMTON, Binghamton, NY 13902.

8. That the Defendant THE STATE OF NEW YORK and/or its agents or employees was negligent in allowing a dangerous condition to exist in the pedestrian roadway/sidewalk area located at STATE UNIVERSITY OF NEW YORK AT BINGHAMTON, Binghamton, NY 13902.

9. The Defendant THE STATE OF NEW YORK, its agents, servants, licensees contractors, subcontractors, employees and other affiliates agencies and departments, and those acting under its direction, behest, permission and control in the ownership, operation, designing, creating, management, maintenance, contracting, subcontracting, supervision, authorizing use and control of said roadway/sidewalk area located at STATE UNIVERSITY OF NEW YORK AT BINGHAMTON, Binghamton, NY 13902, was negligent in failing to properly maintain said roadway/sidewalk and roadway/sidewalk area; in allowing the roadway/sidewalk and roadway/sidewalk area to become obstructed, cracked, uneven, raised, depressed, missing portions thereof, deteriorated, allowing an amalgamate of sand, rocks, and dirt to accumulate on said roadway and/or in a state of disrepair and/or improper repair; in failing to inspect said pedestrian roadway and roadway area; in causing, permitting and allowing a trap, hazard and nuisance to be and exist for an excessive and unreasonable period of time, despite actual and constructive notice; in failing to take any necessary steps to alleviate said condition; in failing to undertake proper and/or adequate safety studies and/or surveys; in failing to properly repair said roadway/sidewalk and roadway/sidewalk area before authorizing its use; in failing to erect barricades or otherwise restrict use of aforesaid area to prevent a hazard, trap and nuisance from endangering the general public and more particularly Claimant herein; in failing to warn the general public, and more particularly Claimant herein, of the subject hazard, trap and nuisance; in permitting and allowing the aforesaid condition to exist on the pedestrian roadway and roadway area thereat; in failing to avoid the aforesaid accident which was foreseeable; and in being otherwise negligent, careless, reckless, and grossly negligent in the premises in negligently leaving sand, rocks and dirt at said location; thereby interfering with safe passage at said location; in failing to warn the general public, and more particularly the Claimant, of the sand, rocks and dirt which was [sic] on the roadway; in failing to divert the general public, and more particularly the Claimant, from attempting to make passage through the area where said hazardous sand, rocks and dirt [sic] on the roadway; in negligently creating an abstraction [sic] on the roadway/sidewalk; in allowing the Claimant to walk where a hazardous condition existed; in causing injuries to the Claimant.

***

AS AND FOR A SECOND CAUSE OF ACTION

ON BEHALF OF MICHAEL TOULOUMIS

12. That at all times hereinafter mentioned, Plaintiff [sic] MICHAEL TOULOUMIS repeats, reiterates and realleges each and every allegation contained herein in the First Cause of Action as though same more fully set forth herein at length.

13. Plaintiff, [sic] MICHAEL TOULOUMIS is the spouse of plaintiff [sic] BETSY TOULOUMIS, and as such is entitled to the services, society, companionship, consortium and support of the plaintiff [sic], BETSY TOULOUMIS.
(Paper No. 1, [emphasis in original])



Claimants' counsel affirms, in pertinent part:

2. I make this affirmation in support of the instant application for an order pursuant to CPLR §2221 granting leave to renew the prior motion to dismiss made on behalf of defendant and the cross-motion to file a late claim pursuant to the Court of Claims Act §10(6) and upon grant of such leave to renew, for an order denying defendant's motion to dismiss and granting claimants' motion to file a late note of issue pursuant to the Court of Claims Act §10(6), together with other further relief as this Court may deem just and proper.

PRELIMINARY STATEMENT

3. In this Court's decision, an order dated June 24, 1999, the defendants [sic] motion to dismiss was granted and claimants' cross-motion to file a late notice of claim was denied. In granting dismissal, the court addressed each of the arguments poses by the parties. However, new information is available to show the claimants have a meritorious claim. To wit, photographs depicting the scene of the accident have been provided to claimant's [sic] counsel.

4. In this Court's decision, the court stated the claimants did not supply critical factual allegations, e.g., the dimensions of the pothole. New information, i.e., photographs illustrating said pothole have been made available by claimant. The photographs supply the critical factual allegations to establish an appearance of merit as required by the Court of Claims Act §10(6). Claimant respectfully requests leave to renew argument in said motion and cross-motion based upon new information that had not been supplied in original application.

PROCEDURAL BACKGROUND

5. Claimants' action arises from a trip and fall accident that

occurred on October 12, 1998 resulting from cracked, uneven, raised, depressed and deteriorated roadway/surface area.

6. As a result of said accident, claimant BETSY TOULOUMIS sustained a serious injury to her ankle and knee.

7. Claimants'[sic] filed a Notice of Claim with the Court of Claims of the State of New York on January 19, 1999.

8. Defendant moved to dismiss claimants' claim by motion on notice dated February 17, 1999. A copy of said motion is annexed hereto as Exhibit "A".

9. Claimants cross-moved for leave to file a late notice of claim by motion on notice date April 9, 1999. A copy of said cross-motion is annexed hereto as Exhibit "B".

10. The Court of Claims granted defendant's motion to dismiss and denied claimants' motion to file a late notice of claim in its Order dated June 24, 1999. A copy of said Order is annexed hereto as Exhibit "C".

THE APPLICABLE LAW

11. The New York State Court of Claims Act §11 requires that the Notice of intention or Claim shall be filed with the Clerk of the Court and a copy shall be served personally or by certified mail, return receipt requested upon the Attorney General within the times hereinbefore provided for filing with the Clerk of the Court pursuant to Section 10.

12. However, § 10(6), of the New York State Court of Claims Act gives the Court the discretion to permit a claimant to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of Article Two of the Civil Practice Law and Rules. Civil Practice Law and Rules § 214, (5) rules [sic] requires that an action for personal injury against a citizen of the state must be commenced within three years from the date of accrual. The claim in this action was filed on January 19, 1999, well within the three year time limit required by the Civil Practice Law and Rules.

13. The claim contains the information required by New York State Court of Claims Act § 11, to wit, the time when and place where such claim arose, the nature of the claim, and the items of damage or injuries claimed to have been sustained and the total sum claimed.

14. New York State Court of Claims Act § 10, [sic] (6) states that the Court will consider various factors in determining whether to permit the following of a late claim. The factors the court will consider are: whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 the state; and whether the claimant has any other available remedy, among other factors.

15. CPLR §2221 gives the claimant the opportunity to renew a motion based upon additional proof not considered in the original application for relief. The instant motion requests the Court to consider photographs of the accident scene that will establish an appearance of merit to the claim at issue.

THE FACTORS APPLIED TO THIS CLAIM

16. The delay in filing the claim was excusable in that the record clearly establishes negotiations between the claimants' counsel and defendant.

17. The state had notice of the essential facts underlying the claim due to the filing of the INCIDENT/ACCIDENT REPORT and ACCIDENT REPORT (Exhibit D) on October 12, 1998. The correspondence from the STATE UNIVERSITY OF NEW YORK AT BINGHAMPTON [sic] dated October 23, 1998 (Exhibit E) and the November 6, 1998 letter (Exhibit F) evidences the defendant had full knowledge of the essential facts.

18. The STATE UNIVERSITY OF NEW YORK AT BINGHAMPTON [sic] had an opportunity to investigate the claim and was able to make a determination that there was no basis to reimburse claimant for her medical expenses. See Exhibit F.

19. The claim is meritorious, in that, the claimant was visiting her daughter STACY TOULOUMIS on the campus of THE STATE UNIVERSITY OF NEW YORK AT BINGHAMPTON [sic] when she was injured while attempting to traverse a sidewalk/roadway upon said campus. Defendant STATE OF NEW YORK has a duty to maintain and repair the sidewalk/roadway areas on the campus of THE STATE UNIVERSITY OF NEW YORK AT BINGHAMPTON. [sic] It was forseeable that claimant could be injured by the unrepaired pothole on the campus and that here contact with unrepaired roadway/sidewalk was the cause of her injury. Photographs of accident scene are attached hereto as Exhibit "G".

20. In further support of the meritorious nature of claimant's cause of action is the medical report of Stephen Hershowitz, M.D., dated October 20, 1998. Dr. Hershowitz's review of claimant's X-rays of her right ankle indicates "irregularity of the distal fibula which is compatible with possible avulsion fracture." Dr. Hershowitz also state [sic] that claimant's right ankle has "marked swelling . [sic] Tenderness over the lateral ligaments of the ankle. Pain on inversion." Dr. Herskowitz's [sic] examination of claimant's right knee revealed "diffuse tenderness over the medial and lateral joint line. Tenderness over the patella tendon with small abrasion and ecchymosis.A [sic] copy of Dr. Hersowitz's report is annexed hereto as Exhibit "H".

21. The failure to file or serve a timely claim with the attorney general will not result in a [sic] substantial prejudice to the defendant, STATE OF NEW YORK, in that the claim was filed January 19, 1999, ninety-nine days after the accrual of the claim and the claimant put the defendant on notice through the numerous incident/accident reports and correspondence. In fact, the defendant did not attempt to settle this matter through their "self-retained" insurance and denied the claimant any alternative course of action other than filing suit. Therefore, there cannot be any doubt that the State had ample notice of the claim. All information the State would have otherwise received through a notice of intention to make a claim was provided when claimant attempted to settle this matter without resorting to judicial intervention. Also, the State of New York made a complete investigation of this claim at the time Claimant attempted tosettle [sic] said claim.

22. The claimant has no other remedy, since all efforts to settle this claim have been rejected by the State.

CONCLUSION

23. The Court should grant claimant's motion to renew claimant's [sic] cross-motion to file a late notice of claim due to the fact that claimant's [sic] action is meritorious as illustrated by the photographs depicting the accident scene and the severe nature of claimant's injuries. Said photographs and medical reports were not considered by the Court in the original application for relief.

24. No previous application for the relief requested herein has been made.

(Paper No. 4)



The Affidavit of Merit states, in pertinent part:

2. On October 12, 1998, at 10:10 p.m., I was injured while I was caused to trip and fall on the campus of the State University of New York at Binghampton.[sic]

3. On the above date, I stepped off the curb to the parking lot in Parking Lot T, at the aforementioned campus, and I slipped on an area of pavement that was negligently paved, whereby I lost my footing and injured my right ankle, right knee and right foot.

4. More specifically, the pavement, in which I tripped and fell was rippled at the location where I placed my foot. Said ripples were approximately 3/4" in height. Additionally, I was unable to see the rippled pavement due to the darkness of night, and the lack of lighting in that area of parking lot T.

5. I have a meritorious cause of action, in that there was a clear defect in the paving of the aforementioned parking lot. Moreover, there was [sic] no street lamps or other lighting at the aforementioned location. (Annexed hereto as Exhibit G)

6. I was injured due to the negligent paving of parking Lot [sic] T on the campus of the State University of New York at Binghampton. [sic]

(Paper No. 5)



State's counsel affirms, in pertinent part:

2. This Affirmation is submitted in opposition to claimant's [sic] motion to renew its application to late file a claim pursuant to Court of Claims Act § 10(6).

3. Claimant has brought an action in the Court of Claims against the State of New York in the amount of $6,000,000 to recover for acts allegedly committed by the defendant State of New York which claimant asserts were negligence. In a Memorandum-Decision and Order dated June 24, 1999 and filed in the Court of Claims on July 13, 1999, the Honorable Jerome F. Hanifin, Judge of the Court of Claims, granted defendant's motion M-59083 and dismissed Claim No. 99647. In the same Memorandum-Decision and Order the Court ordered that Claimant's [sic] Cross Motion [sic] No. CM-59405 to late file a claim was denied without prejudice.

4. In paragraph 5 of attorney Mark Guerra's Affirmation in Support of Claimant's [sic] Motion to Renew, claimant's accident is described as follows: "Claimants' action arises from a trip and fall accident that occurred on October 12, 1998 resulting from cracked, uneven, raised, depressed and deteriorated roadway/surface area."

5. The State University of New York Report of Accident of Injury indicates that the accident took place when "Touloumis visiting daughter and walking off curb in Lot T. When she stepped off curb her foot (right) landed in a indentation in pavement which was covered by leaves and fell". Attached as Exhibit A is a copy of the State University of New York Accident Report.

6. In the Affidavit of Merit filed by claimant Betsy Touloumis, claimant states in paragraph 3, "I slipped on an area of pavement that was negligently paved".

7. In paragraph 4 of the affidavit of merit claimant states "more specifically, the pavement , in which I tripped and fell was rippled at the location where I placed my foot. Said ripples were approximately 3/4" in height. Additionally, I was unable to see the rippled pavement due to the darkness of night, and the lack of lighting in that area of parking lot T".

8. In paragraph 5 claimant says "I have a meritorious cause of action, in that there was a clear defect in the paving of the aforementioned parking lot".

9. In paragraph 6 of the affidavit of merit claimant states "I was injured due to the negligent paving of parking Lot [sic] T on the campus of the State University of New York at Binghampton." [sic]

10. In paragraph 4 of the attorney's affirmation the claimants' counsel states: "new information, i.e., photographs illustrating said pothole have been made available by claimant".

11. First, it is impossible to tell from the photocopies of the photographs supplied by claimant in support of his motion what the pictures depict. In any event, the Court should not consider the photos to be "new evidence" since claimant or someone on claimants' behalf could have taken pictures of the scene at any time.

12. Whether a defect is dangerous is a question of fact that turns on the circumstances of the particular case. See Stanton v. Hexam Gardens Construction Company, 144 AD2d 132 (3d Dept. 1988). Claimant states that she tripped and fell on pavement that was rippled at the location where she placed her foot and that the ripples were approximately 3/4" in height. Although there is no specific dimension at which one can always characterize a pavement defective as non-actionable (Loughran v. City of New York, 298 NY 320 [1948]). Some defects are so trivial as to preclude liability as a matter of law. Mascaro v. State of New York, 46 AD2d 941, (3rd Dept. 1974).

13. Claimant has submitted no evidence by way of expert opinion or otherwise that would support claimants' personal opinion that her accident was the result of a clear defect in the paving of the parking lot which was caused by "negligent paving".

14. It is well established that the State has a duty to maintain its premises in a reasonably safe condition for users thereof. Basso v. Miller, 40 NY2d 233, 241 (1976). The state's duty includes the obligation to use reasonable means to cure dangerous conditions that it has created or of which it has actual or constructive notice. Gordon v. American Museum of Natural History, 67 NY2d 836 (1986). It is not, however, an insurer of the safety of its premises. See Preston v. State of New York, 59 NY2d 997 (1983).

15. Claimant has again failed to show this court how the defendant State of New York was on notice of a dangerous condition.

(Paper No. 6)


CPLR § 2221 (3) (e) (2 and 3) state that a motion for leave to renew: "shall be based upon new facts not offered on the prior motion that would change the prior determination...", and, "shall contain reasonable justification for the failure to present such facts on the prior motion". [emphasis added].


Claimants' motion must be denied. Claimants have supplied the Court with no excuse why the additional submissions were not included in the prior motion. The photographs certainly could have been taken at any time, and the medical report is dated October 20, 1998, nearly six months before the Claimants filed their cross-motion to late file.


In any event, the new submissions would not change the result. Nothing can be learned from the photocopies of the photographs submitted in support of this motion (Paper No. 5, Exhibit G), particularly with regard to ripples or cracks or a pothole or a lack of lighting. With regard to the latter, the submissions are silent as to whether Claimant "stepped off the curb" (Paper No. 5) at a random location or at a designated entrance to the parking lot. Beyond that, we learn this time that ripples, by estimate or measurement were some 3/4" high. While it is true that there is no requirement that a surface defect must be of a particular dimension before it is considered dangerous (Loughran v City of New York, 298 NY 320), where, as here, a defect in a parking lot reflects a 3/4" difference in elevation, as in the factual scenario supplied by the Claimants, it is trivial as a matter of law. (C.F. Gigliotti v St. Stanislaus Kostka Roman Catholic Church, 261 AD2d 951; Riser v New York City Housing Authority, 260 AD2d 564)



April 13, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims