New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2002-016-023, Claim No. None, Motion No. M-64392


Synopsis


Late claim motion alleging slip and fall on traffic sign on sidewalk outside Supreme Court courthouse was denied.

Case Information

UID:
2002-016-023
Claimant(s):
JEANINE PEREZ
Claimant short name:
PEREZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-64392
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Lloyd F. Goldstein, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, AAG
Third-party defendant's attorney:

Signature date:
March 6, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is the motion of Jeanine Perez for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). The proposed claim arises from an April 26, 2001 incident in which Perez allegedly tripped over a street sign that had been removed from the sidewalk and placed under some hedges with a portion protruding onto the sidewalk. According to claimant's papers, this occurred on Pearl Street, about 225 feet east of the corner of Centre Street, adjacent to the Supreme Court building to which Perez was traveling. The only State nexus asserted is that a New York State Court officer at the courthouse is allegedly stationed at a door less than fifty feet from where Perez fell and he or she "could have moved the sign." In determining whether to grant this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first, second and third factors – whether defendant had notice of the essential facts, whether defendant had an opportunity to investigate and whether defendant would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl1998). In this case, claimant asserts that "[o]bviously [investigation done by the City of New York] and the pertinent facts would be available between the City . . . and the State. . . ." but does not elaborate. Claimant further contends that there is some sort of ambulance record, but does not provide same. Finally, claimant asserts that the "placement of the Court Officer where the claimant fell provides the basis for notice . . ." although there is no allegation that any State court officer saw the sign, witnessed the incident or for that matter, was stationed outside the Courthouse. On balance, claimant fails to satisfy these three factors.

As to an alternate remedy, claimant has commenced an action against the City of New York in Supreme Court. As to an excuse, claimant asserts that it was initially unknown that the courthouse was "under the jurisdiction" of the State. Misapprehension as to the proper party or lack of familiarity with Court of Claims jurisdiction does not constitute a valid excuse for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied, 89 NY2d 815, 659 NYS2d 856 (1997).

The final factor to be considered is the appearance of merit. First, there appears to be some issue as to what claimant tripped on. An Aided Report prepared as to the incident indicates that claimant said she tripped on a concrete barrier on Centre Street. See Exhibit C to the January 9, 2002 affirmation of Grace A. Brannigan. But even assuming she tripped on a traffic sign as alleged in the claim, Perez does not dispute that the State did not construct and does not own or maintain the sidewalk location on which she allegedly fell. In fact, claimant herself characterizes the location as a "public sidewalk in the City of New York." Moreover, Perez does not dispute defendant's assertion that it did not own or maintain any traffic signs at that location. As set forth above, her only theory of recovery against the State is that a court officer stationed at the courthouse "could have" moved the sign.

As set forth above, there is no indication that any court officer was aware of the sign. Moreover, claimant has provided no basis for any such duty on the part of the State.[2] In sum, claimant fails to meet the standard set forth in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

For the foregoing reasons, having reviewed the parties' submissions,[3] IT IS ORDERED that motion no. M-64392 be denied.


March 6, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [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).
  2. [2] Prior to April 1, 1998, "counties and cities, including New York City, [were] responsible for the provision of ‘suitable and sufficient' facilities for use by the State's major trial courts." 1996 McKinney's Session Laws p. 2618 for ch. 686; see §5 of ch. 686 for the April 1, 1998 effective date of Judiciary Law §39-b. Effective April 1, 1998, one aspect of that responsibility -- the cleaning of the interior of court facilities, was transferred to the State. See subsection 2 of Judiciary Law §39-b. As Perez's accident did not involve the cleaning of the interior of the courthouse, no duty on the part of the State is implicated.
  3. [3]The following were reviewed: claimant's notice of motion with affirmation in support, the affidavit of Jeanine Perez, proposed claim and undesignated exhibits; and defendant's affirmation in opposition with exhibits A-D.