This is a motion for permission to file a late claim brought by a cooperative
apartment building in upper Manhattan. The six-story high building is situated
on top of a hill that is bordered by a stone retaining wall which abuts the east
side of the Henry Hudson Parkway. The apartment building is settling, which has
cracked the building's walls and tilted its floors. According to the engineer
hired by the Co-Op, the settling was caused by soil losses from below the
basement's foundation, which in turn were the result of water leakage and soil
"washout" through the improperly maintained and deteriorating retaining wall.
(Cl notice of mot, Perez affid, ¶¶ 4-6).
The defendant State of New York opposes claimant's motion on a number of
grounds, including claimant's failure to include an engineer's affidavit with
its papers (affirm opp ¶ 7).
An engineer's affidavit was not part of movant's Notice of Motion which was
dated November 9, 2001. Stuart K. Sokoloff, a professional engineer and the
principal of Stuart Engineering Associates, submitted an affidavit dated May 14,
2002 ("Reply Affidavit"). Mr. Sokoloff and his firm were retained by claimant
in September of 2000. However, Stuart Engineering was located in Two World
Trade Center and with the destruction of his office, virtually all of Sokoloff's
records were destroyed (Sokoloff affid, ¶4). Under the circumstances,
Sokoloff's affidavit will, for our immediate purposes, be regarded as timely as
if were submitted with claimant's Notice of Motion.
Initially, if defendant did not design, build, own, maintain or repair the
retaining wall, then this Court lacks jurisdiction to entertain the Co-Op's
motion for a late claim. For this threshold issue, defendant relies upon the
affidavit of Osama Khalil, a civil engineer and the claims engineer for the New
York City regional office of the State Department of Transportation (DOT).
(Affirm opp, ¶8, exh B [Khalil affid]).
Mr. Khalil states that he performed an exhaustive search of the records
maintained at the DOT for projects as they were actually built. These "as
built" plans did reveal that the State reconstructed and designed the Henry
Hudson Parkway from 160th Street northbound to Dyckman Street - - in 1985. No
work was performed on the retaining wall as part of that contract, nor is there
any other "as built" record indicating that design or construction work was
performed by DOT on the retaining wall. (Id., ¶¶3-6).
Khalil also looked through the records kept by the Maintenance Unit of DOT and
attested that he found nothing to show that the State had either maintenance
responsibility or ownership of the subject situs and retaining wall. He further
searched the records of the Construction Unit at DOT, which includes not
only projects designed in-house, but by outside consultants, and again came up
empty. Such data base goes back to 1980 and includes all construction projects
which are part of the "built" and "unbuilt" arterial roadways in New York. For
information regarding the design, construction or safety improvement projects
performed by the Department prior to 1980, these records would consist of the
"as built" plans referred to above. (Id., ¶¶ 7,9
Khalil concludes: "The records reviewed affirm the absence of any evidence of
the DOT's ownership, design, construction, reconstruction, maintenance and/or
control of the retaining wall adjacent to the east of Henry Hudson Parkway
northbound at W181st Street, New York, New York" (Id., ¶11).
On claimant's behalf, Sokoloff made considerable efforts to track down
responsibility for the retaining wall. He went to the DOT's Long Island City
office and "reviewed numerous microfilm documents pertaining to the many
construction projects along the Henry Hudson Parkway... which did not provide
the necessary ownership or construction information." Sokoloff noted that these
files included photographs of the wall taken every few years in conjunction with
various projects (Sokoloff affid, ¶¶ 16 & 17).
In early 2001, Sokoloff wrote to Khalil to thank him for his help when he
visited the Long Island City office and inquired about any further assistance he
could supply (Sokoloff affid, exh C). Khalil responded by noting that a search
for the records turned up nothing relating to Sokoloff's request, that the wall
"is not part of the State Arterials System" and went on to suggest that Sokoloff
request documents from the Port Authority and three New York City agencies - -
the Department of Parks, Department of Transportation, and the Bureau of
Bridges. (Id., exhs C & D).
Sokoloff proceeded to retain a Mr. Angel Garabito, whom he described as an
"expeditor" that had done work for him in the past, to search for the records of
the City of New York's transportation department. Mr. Garabito requested all
pertinent records from the City agency, but when researched, the agency was
unable to discover any information as to the ownership and construction of the
retaining wall. However, the NYC transportation agency suggested to Garabito
that he check the records of the City's Parks Department. (Id.,
At that point, Sokoloff did not follow up on this last "lead," having been
significantly slowed down by the September 11 destruction of his office, and now
being confronted with the immediate need to prepare the specifications and
oversee the bidding process for a construction option to stabilize the West
181st building (id. ¶37).
No information was elicited from any source that would fix, or even
approximate, the construction date of the retaining wall. With that said,
Sokoloff indirectly dealt with the issue when discussing the concrete facing,
which was almost completely deteriorated when the engineer inspected the wall in
late 2000. In Sokoloff's opinion, the concrete facing on the wall was added
after construction "in what appeared to be an effort to stop the leakage
and associated soil infiltration." Sokoloff's "best guess" was that the facing
was applied 15 to 20 years previously, but added that it could have been applied
forty years before his inspection. (Id. ¶¶ 10 & 11 [see
Not knowing when the retaining wall was built compounds the difficulty of
ensuring that a particular search involves the correct records, whether that of
the State of New York, or the City of New York. Even Mr. Khalil implicitly
suggests the difficulty of proving the negative: "In the absence of affirmative
documentation...I can assert that there is no DOT involvement with the wall in
question" (Khalil affid, ¶11). Note that New York has been more reluctant
than other jurisdictions to prove a negative from an absence in a business
In light of the totality of the parties' submissions, whether the State was
involved with the retaining wall in some way is insufficiently conclusive to
deny the jurisdiction of this Court at this time.
Defendant raises a second jurisdictional issue which must be decided before
reaching the late claim. Namely, that the proposed claim does not contain the
specificity required by §11 of the Act as to what was the defendant's
negligence and how it caused damage to claimant. I conclude that the proposed
claim is sufficiently particularized to put defendant on notice as to the nature
of the claim and the items of damage, which includes the amount to repair the
building's settling. While these facts are more subtle than those obtaining in
the typical precedents under §11 such as Heisler v State of New
, 78 AD2d 767, 433 NYS2d 646 (4th Dept 1980) and Cannon v State of
, 163 Misc 2d 623, 622 NYS2d 177 (Ct Cl 1994), the same principles
are at work.
Section 10.6 of the Court of Claims Act (the "Act") requires consideration of
whether (1) the proposed claim appears meritorious; (2) the claimant has any
other available remedy; (3) the delay was excusable; (4) defendant had notice of
the essential facts constituting the claim; (5) the defendant was substantially
prejudiced; and (6) defendant had an opportunity to investigate the
circumstances underlying the claim.
As to the first factor, claimant's engineer stated that from a number of
inspections in September through November of 2000, he determined that the 875
West 181st building was settling. As noted above, this was because of soil loss
below the building's foundation walls resulting from leakage and soil washout
through the retaining wall. The wall displayed "significant degradation [with]
many holes up to five inches in diameter." (Sokoloff Affid, ¶7). In fact,
the Co-Op, as advised by Sokoloff, has let out for bid and tentatively accepted
a contractor to perform work to stabilize the building.
The affidavit of defendant's engineer is wholly concerned with the lack of
proof of State ownership, design, maintenance etc. Nowhere, for example, does
Mr. Khalil offer an alternate opinion for what caused the West 181st Street
building to settle.
Claimant therefore meets the standard for the appearance of merit as set forth
in Matter of Santana v Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d
395, 402-03 (Ct Cl 1977):
(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."
As to alternate remedy, inasmuch as claimant itself does not maintain that the
State of New York is the only possible defendant, or even a more likely one than
the City of New York, claimant does not satisfy this factor. With respect to
the third factor, unfamiliarity with who built, designed or is otherwise
responsible for a structure or piece of property does not, under the Act,
constitute a valid excuse for a late filing.
Erca v State of New York
, 51 AD2d 611, 378 NYS2d 328 (3d Dept 1976),
42 NY2d 854, 397 NYS2d 631 (1977).
The final three factors covering notice, prejudice and opportunity to
investigate are closely related and may be evaluated together. See Brewer v
State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998).
The State had no notice of the subject of this claim until this motion was
filed; and the substance of such notice was somewhat thin without the engineer's
affidavit of May 14, 2002. As to substantial prejudice and opportunity to
investigate, granted a subsoil problem can be years or decades in the making and
difficult to analyze, but defendant was in no appreciably worse position at the
time of this motion, than at the time the damage to the building became apparent
in the fall of 2000. Compare with the transitory conditions which caused a
construction worker's injury in Donaldson v State of New York, 167 AD2d
805, 563 NYS2d 366 (3d Dept 1990) - - lumber and plastic sheeting blew off the
roof of a building adjacent to where Gordon Donaldson was working. While not
terribly clear cut, I conclude that claimant on balance satisfies these three