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
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
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.
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'
IT IS ORDERED that motion no.
M-64392 be denied.