New York State Court of Claims

New York State Court of Claims

V. THE STATE OF NEW YORK, #2002-016-082, Claim No. None, Motion No. M-64295


Synopsis



Case Information

UID:
2002-016-082
Claimant(s):
875 West 181 Owners Corp
Claimant short name:

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-64295
Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Braverman & Associates, P.C.By: Jamie A. Gavrin, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, AAG
Third-party defendant's attorney:

Signature date:
August 14, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 &10).

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., ¶24).

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 footnote 3]).

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 record.[1]

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 York, 78 AD2d 767, 433 NYS2d 646 (4th Dept 1980) and Cannon v State of New York, 163 Misc 2d 623, 622 NYS2d 177 (Ct Cl 1994), the same principles are at work.[2]
***
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.[3]

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.[4] Erca v State of New York, 51 AD2d 611, 378 NYS2d 328 (3d Dept 1976), affd 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 factors.
***
For the foregoing reasons, having reviewed the parties' submissions together with the factors enumerated in §10.6 of the Act ,[5] IT IS ORDERED that motion no. M-64295 be granted. Within sixty (60) days of the filing of this Decision and Order, claimant shall file and serve its claim and otherwise comply with §§ 11 and 11-a of the Court of Claims Act.

August 14, 2002
New York, New York

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




[1] From Martin, Rossi and Capra, New York Evidence Handbook 1997 ed (2001 supp): "Surprisingly, the New York Court of Appeals has not expressly decided whether the absence of an entry in a business record is admissible to prove the nonoccurrence of an event. Lower court cases on the point have refused to recognize the absence of an entry in a business record as proof of nonoccurrence." [Citations omitted]. (§8.3.3.7, p. 846).

[2] "Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet [the] requirements [of §11.]" Heisler, supra, 78 AD2d at 767-68, 433 NYS2d at 648.

[3] The six are not necessarily exhaustive, nor is the presence or absence of any one dispositive. See Bay Terrace Coop. Section IV, Inc. V New York State Employees' Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996). Every late claim must, in any event, be brought no later than the limitations' period set by Article 2 of the CPLR. Obviously, the deterioration of the retaining wall and its affect on the apartment building were continuous in nature and stretched over a long period of time, but that does not necessarily take the proposed claim beyond the applicable statute of limitations. Moreover, defendant does not raise the issue in its opposition papers.



[4] Perez affid, ¶16.
[5] Claimant submitted: a Notice of Motion for Permission to File and Serve a Late Claim which contained the Affidavit of Peter Perez (president of the board of the Co-Op) and exhibit A, the proposed Claim and a Memorandum of Law in Support of its motion; a Reply Memorandum of Law in Support of its motion; the Reply Affidavit of Jamie A. Gavrin, its attorney; and the Reply Affidavit of Stuart K. Sokoloff, P.E, which contained exhibits A through G. Defendant submitted an affirmation in opposition which contained exhibits A and B, the latter being the affidavit of Osama Khalil, its engineer.