New York State Court of Claims

New York State Court of Claims

POWELL v. THE STATE OF NEW YORK, #2000-016-029, Claim No. None, Motion No. M-61076


Motion for permission to file a late claim is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Bergman & Bergman, P.C.By: Allen Goldberg
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
May 22, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Angela Powell for permission to file and serve a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In her proposed claim, Powell asserts that due to defendant's negligence, she slipped and fell on the sidewalk outside the Ella McQueen Residential Center in Brooklyn. Claimant works at the center, a facility of the State Office of Children and Family Services; the accident occurred on the sidewalk outside after she had left work. Claimant concedes that the "sidewalk where claimant['s] . . . accident occurred was controlled by . . . The City of New York." See ¶9 of the April 10, 2000 affirmation of Allen Goldberg. Claimant premises liability on the assertion that employees of the state parked vehicles on the sidewalk, causing it to become damaged. In determining whether to grant this motion, the Court is required to consider the six factors enumerated in the Act. The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling[1]: whether (1) the defendant had notice of the essential facts constituting the claim; (2) the defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.

The first, second and third factors -- whether the state had notice of the essential facts, whether the state had an opportunity to investigate and whether the state would be prejudiced by the granting of this motion are intertwined and may be considered together. See William Kleen, The New York State Court of Claims: A Procedural Guide, 19 Trial Law Q 49, 59 (Spring 1988); Avila v State of New York, 131 Misc 2d 449, 500 NYS2d 626 (Ct Cl 1986). In this case, it is undisputed that an accident report was created. See, e.g., Exhibit A to the March 9, 2000 affirmation of Susan J. Pogoda. However, there are a number of discrepancies as to timing. First, in her affidavit and proposed claim (see Exhibits A and B to claimant's moving papers), claimant asserts that her accident occurred on February 6, 1998. However, the accident report completed by claimant and her co-worker indicates that the accident occurred on February 3, 1998. In addition, in her affidavit, claimant states that she returned to work two days after the incident and that approximately one week later, she and her co-worker turned in the accident report to the personnel department. However, the accident report itself is dated March 17, 1998 – almost one and a half months after the incident -- in what appears to be the same handwriting as claimant's purported signature. In any event, however, defendant had notice in a relatively short time frame of the particular street corner and the fact that claimant fell on uneven pavement. See, e.g., Crawford v City University of New York, 131 Misc 2d 1013, 502 NYS2d 916 (Ct Cl 1986), where the Court points out that since supervisory personnel had notice of the occurrence at the latest 18 days after the event, CUNY was in a better position to investigate the incident than if the claim had been timely filed on the 90th day. On balance, claimant satisfies the notice-opportunity-prejudice factors of the Act.

As to excuse, claimant has offered no explanation for her failure to timely file and serve a claim and thus does not satisfy this factor of the Act. With regard to an alternate remedy,

claimant recognizes that she might have pursued a claim against the City of New York and thus fails to satisfy the alternate remedy factor, a failure unaffected by the fact that it may now be too late to bring such an action.

The remaining factor to be considered is the merit of the claim. Defendant argues that the proposed claim lacks merit for a variety of reasons. There is no proof that this claim is barred by the exclusivity of workers' compensation. The incident did not occur during claimant's work day or as she was exiting the building, but rather outside her work site after she had left. In fact, claimant asserts that the accident occurred at 8:20 p.m., although she does not explain how that coincides with the 9:00-5:00 work schedule listed on the accident report she prepared. Nor am I convinced that the defect in question was so trivial as to foreclose a claim or that claimant assumed the risk of walking at the accident site merely because she alleges that she previously had seen cars parked on the sidewalk.

However, there are a number of factors which constrain me to find that Powell's claim does not appear meritorious for the purposes of the Act. As set forth above, claimant admits that the site of the accident was controlled by the City of New York. Moreover, claimant concedes that "[g]enerally, the owner of land abutting a public sidewalk does not, solely by virtue of his status as an owner, owe a duty to maintain the sidewalk in a safe condition." See ¶22 of the January 18, 2000 affirmation of Allen Goldberg. Powell's claim is premised solely on the theory that state-owned vehicles created the defective condition by parking on the sidewalk. First, a photograph supplied by claimant shows a van parked on the sidewalk, but not on the lower "settled" section causing the height differential that allegedly precipitated claimant's fall. In fact, the section of sidewalk on which the van is parked does not appear to have settled to a lower height; claimant's expert does not address this issue. Moreover, the lowered section of which Powell complains is not located directly next to the building, but juts directly out from the corner and thus does not appear a likely spot for vehicles to be parked. Next, while claimant states that state-owned vehicles regularly parked on the sidewalk in the area of her accident, she provides only one photograph of one vehicle parked in the area.

As to claimant's injuries, she has provided no medical records (according to her attorney, they have been requested, but not yet been received). Nor does she provide an affidavit from a physician or even from claimant herself as to her injuries. All that is provided is her attorney's unsupported statement that more than one and a half years after the accident, back surgery was performed on claimant. In short, claimant makes no showing of a causal connection between her fall and the subsequent surgery.

Thus, upon consideration of the entire record, including the proposed claim, exhibits and affidavits, no reasonable cause exists to believe that a valid cause of action exists. Moreover, because of the tenuous connection to state involvement, Powell's claim appears legally defective. Matter of Santana v N.Y.S. Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-3 (Ct Cl 1977). See also Prusack v State of New York, 117 AD2d 729, 498 NYS2d 455 (2d Dept 1986).

Accordingly, having reviewed the parties' submissions,[2] IT IS ORDERED THAT motion no. M-61076 is denied.

May 22, 2000
New York, New York
Judge of the Court of Claims

[1] See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  1. [2]The Court reviewed claimant's notice of motion with supporting affirmation and Exhibits A-G; defendant's affirmation in opposition with Exhibits A-B; and claimant's reply affirmation with Exhibits A-B.