New York State Court of Claims

New York State Court of Claims

GROSS v. STATE OF NEW YORK, STATE OF NEW YORK DEPARTMENT OF PARKS, RECREATION & PRESERVATION, BATTERY PARK CITY AUTHORITY and HUDSON RIVER PARK TRUST, #2002-001-084, Claim No. N/A, Motion No. M-65509


Synopsis



Case Information

UID:
2002-001-084
Claimant(s):
HOLGER GROSS
Claimant short name:
GROSS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK, STATE OF NEW YORK DEPARTMENT OF PARKS, RECREATION & PRESERVATION, BATTERY PARK CITY AUTHORITY and HUDSON RIVER PARK TRUST
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-65509
Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Bennett & MoyBy: Alan J. Bennett, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Grace A. Brannigan, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
October 7, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers have been read and considered on movant's application for permission to file a late claim pursuant to Court of Claims § 10 (6): Notice of Motion, dated July 9 and filed July 16, 2002; Affirmation in Support of Alan J. Bennett, Esq., dated July 9 and filed July 16, 2002, with annexed Exhibits A-K; Affidavit of Holger Gross, sworn to July 9 and filed July 16, 2002; Memorandum of Law, dated July 10 and received July 16, 2002; Affirmation in Opposition of Grace A. Brannigan, Esq., AAG, dated August 8 and filed August 12, 2002, with annexed Exhibit A; Reply Affirmation of Alan J. Bennett, Esq., dated August 14 and filed August 16, 2002, with annexed Exhibit A.

On April 14, 2001, movant Holger Gross ("movant"), a 33-year old self-employed wardrobe stylist, was rollerblading south on the pedestrian travelway/bicycle path ("the travelway") situated between West Street and the Hudson River when, "due to on-going construction" he "had to detour onto an adjacent plaza between Stuyvesant High School and this travelway," where he fell and injured himself when his left rollerblade became wedged in an expansion joint between two of the plaza's concrete sections (Affidavit of Holger Gross, sworn to July 9 and filed July 16, 2002 ["Gross Aff."], ¶¶ 3-7). Movant now seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6) to allege, generally, that defendants "State of New York, State of New York Department of Parks, Recreation & Preservation, Battery Park City Authority and Hudson River Park Trust" negligently owned, operated, maintained, controlled, inspected, designed, planned, installed, constructed, repaired, managed and supervised the plaza and the travelway; and were performing construction that obstructed access to a portion of the travelway, forcing those using it onto the plaza, which was not reasonably safe for their use (Affirmation of Alan J. Bennett, Esq., dated July 9 and filed July 16, 2002, with annexed Exhibits A-K ["Bennett Aff."], Exh. B ["Verified Complaint"], which the Court will consider to be the proposed claim required by section 10 [6]).

As an initial matter, the Court of Claims has no jurisdiction to hear claims against individuals or entities other than the State of New York (see, Court of Claims Act § 9) and certain other entities specified by statute (see, e.g., Education Law § 6224 [4]). The Court has jurisdiction over a tort claim against the State of New York and its agency, the New York State Office of Parks, Recreation and Historic Preservation, which is not an entity separate and apart from the State for purposes of such a lawsuit; however, the Court has no jurisdiction over a cause of action founded upon tort against the Battery Park City Authority (see, Public Authorities Law § 1971 et seq.) or the Hudson River Park Trust (see, L. 1998, ch. 592). Both are public corporations that must be served with a notice of claim as a condition precedent to a tort action in Supreme Court (see, Public Authorities Law § 1984; L. 1998, ch. 592, § 11; General Municipal Law § 50-e).

I. Discussion

The Court in its discretion may authorize the filing of a late claim against the State "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" (Court of Claims Act § 10 [6]). In determining a motion seeking permission to file a late claim, the Court must consider the six factors enumerated in section 10 (6): (1) whether the delay in filing was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether the failure to file and serve a timely claim or serve a notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has any other available remedy. The Court in the exercise of its discretion balances these factors (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Movant attributes his delay in filing in this Court principally to his mistaken but good-faith belief that "the location of this accident, and the happening of this accident was under the ownership, operation and control of the City of New York," which he timely served with a notice of claim (Gross Aff., ¶ 16). Moreover, the City of New York ("City") made "overtures about the potential settlement of this matter," which lulled him into assuming that "the correct responsible entity had been served with a Notice of Claim" (id., ¶ 19). The City disabused him only when, more than a year after his accident, it "responded [to his attorney's request for records made pursuant to the Freedom of Information Law ("FOIL")] that the location of [his] accident (Stuyvesant Plaza) was not under its ‘jurisdiction'" (id., ¶ 21).[1]

Confusion as to which governmental entity is the proper defendant or as to the manner or court in which to pursue a tort action against a particular governmental defendant (a confusion that clearly persists) does not excuse late filing (Maurantonio v State of New York, 266 AD2d 290; see also, Affirmation in Opposition of Grace A. Brannigan, Esq., AAG, dated August 8 and filed August 12, 2002, with annexed Exh. A, ¶ 6, Exh. A). Moreover, movant was not, as he implies, otherwise diligently pursuing his claim or misled by the City. The Office of the Comptroller merely sent him a form letter to acknowledge receipt of his notice of claim, followed by repeated form letters asking him to submit the information required to investigate his claim's merits (Bennett Aff., Exh. G). After advising movant that his claim, one of thousands received by the City each year, was under investigation, the letter from the Office of the Comptroller stated that "[o]nce we have completed our investigation, we may be in a position to make a settlement offer. It is also possible, however, that we will not" (id.). This hardly qualifies as a settlement "overture."

In short, movant has provided no reasonable excuse for his delay in filing a claim against the State. Accordingly, the first factor disfavors his application.

The second, third and fifth factors (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; and whether the delay resulted in substantial prejudice to the State) are related. Accordingly, the Court will consider these factors together (see, Brewer v State of New York, 176 Misc 2d 337, 342).

First, movant does not contend that the State had notice of the essential facts of his claim or any opportunity to investigate prior to this motion. Instead, he argues only that the State has not been prejudiced by the delay because
The accident-causing instrumentality was and is neither transitory nor fleeting in duration, thus not preventing a full and complete investigation. In fact, the accident-causing instrumentality is currently in exactly the same condition as it existed on the date of my accident. I returned to photograph this area on May 22[,] 2002, and again with the engineer on June 17, 2002, who also took photographs, [and] on both occasions the expansion joint and on-going construction in question being the same as it existed on April 14, 2001
(Gross Aff., ¶ 24).


Contrary to movant's assertion, however, the engineer indicates that the travelway near the accident site was in fact no longer obstructed by construction or otherwise when he visited it on June 17, 2002 (Bennett Aff., Exh. J, photographs 7, 9, 14). Still, the pavers in the plaza apparently remain unchanged and the State has not complained of prejudice. Accordingly, these three factors, although not weighing heavily in movant's favor, do not strongly militate against granting his application either.

Next, while 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), the most critical factor is the apparent merit of the proposed claim (see, Plate v State of New York, 92 Misc 2d 1033). A movant need only establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (see, Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Movant has stated a cause of action founded upon tort sufficiently for purposes of a section 10 (6) motion, but whether he has stated such a cause of action against any entity over which this Court has jurisdiction is another matter altogether. According to movant's attorney,
[b]ased on . . . investigation and information, and until further investigation and discovery can be conducted to determine the responsible parties, at this juncture the following . . . additional governmental entities may be involved: Board of Education of the City of New York; State of New York; State of New York Department of Parks, Recreation & Preservation; Battery Park City Authority; Hudson River Trust (the latter all being State entities)"
(Bennett Aff., ¶ 8).


As already noted, however, the Court of Claims has no jurisdiction over tort claims against the Battery Park City Authority or the Hudson River Park Trust. While the Court has jurisdiction over a cause of action against the State on account of the torts of its officers and employees while acting as officers and employees of the New York State Office of Parks, Recreation and Historic Preservation, nothing in movant's papers suggests why he might suspect that the State, through this agency, had anything to do with the accident site or the construction on the travelway. Indeed, in his brief he lumps the Office in with the Trust as though the latter were part of the former, which, of course, it is not (see, Memorandum of Law, dated July 10 and received July 16, 2002). Accordingly, movant has not established a meritorious claim on the papers submitted, and so the fourth factor also weighs against granting his application.

The final consideration--whether movant has an alternative remedy--is almost beside the point in this case, where this Court apparently lacks jurisdiction over his cause of action anyway. The Court notes, however, that movant's attorney has indicated that he is pursuing the City, which was served with a timely notice of claim, and the Board of Education, which was not, in Supreme Court (Bennett Aff., ¶ 9). Movant clearly neglected to serve the Battery Park City Authority and the Hudson River Park Trust with timely notices of claim; and the limitations period applicable to the Trust has already lapsed.

II. Conclusion

Upon reviewing and balancing the factors set forth in Court of Claims Act § 10 (6), the Court finds that these factors considered as a whole weigh against granting this application for permission to file a late claim. Accordingly, the Court denies movant's motion.


October 7, 2002
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]This is not quite accurate. In response to the FOIL request, a Legal Intern in the City's Department of Parks and Recreation wrote that she was unable to locate any responsive documents and added, by obvious way of explanation, that Stuyvesant Plaza was "not under Parks jurisdiction"; and, in a subsequent letter related to a FOIL request, a Legal Intern for Capital Projects in the same City agency informed movant's consultant that "the area in question [Stuyvesant Plaza] is not under the jurisdiction of the New York City Department of Parks and Recreation" and "suggest[ed] contacting the Department of Transportation or the Hudson River Park Trust for further information" (Bennett Aff., Exh. K [emphasis supplied]). The City may, indeed, have no responsibility for the accident site, but none of the correspondence included with movant's papers indicates that anyone from the Office of the Comptroller or the Corporation Counsel has so informed him.