New York State Court of Claims

New York State Court of Claims

ALLEGRETTO v. THE STATE OF NEW YORK, #2003-019-539, Claim No. NONE, Motion No. M-66465


Claimant's motion for permission to file a late claim involving actions of Code Division employee in interpreting New York State Uniform Fire Prevention and Building Code is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
COOK, TUCKER, NETTER & CLOONAN, P.C.BY: William N. Cloonan, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
April 14, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-66465, dated February 22, 2003, and filed March 3, 2003.
  2. Affidavit of William N. Cloonan, Esq., in support of motion, sworn to February 22, 2003, with attached exhibits.
  3. Proposed Claim, dated February 20, 2003.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated March 12, 2003, and filed March 14, 2003, with attached exhibits.
  5. Affidavit of William Stewart, in opposition to motion, sworn to March 11, 2003.
  6. Reply Affidavit of William N. Cloonan, Esq., in support of motion, sworn to March 18, 2003, and filed March 20, 2003, with attachments.
This proposed claim relates to an accident that occurred on December 3, 2001 at premises under construction located at 4189 State Highway 28 in the Town of Hartwick, New York (hereinafter "Premises") owned by Carol Klingensmith, Gene R. Ellis, individually, and Gene R. Ellis doing business as A& J's Windows and Doors. The proposed claim alleges that Claimant was "[w]alking across the floor of the premises, stepped upon an unguarded and unprotected hole or opening in the floor of the premises and fell through an eight foot by twelve and half foot opening from the third floor which hole had been covered by two inch insulation a distance of approximately eighteen feet...." (Claimant's Exhibit D). Claimant suffered catastrophic injuries and has been in a coma, unable to speak, since the date of the accident.

It is undisputed that the State is not the owner of these Premises. Rather, Claimant's allegations of negligence against the State are characterized as relating to the State's failure to supervise construction of the Premises through the Department of State Codes Administration and Enforcement Division (hereinafter "Code Division") by permitting/allowing occupancy of said Premises; permitting/issuing a certificate of occupancy; and/or approving plans for construction after the State allegedly took over code enforcement duties from the County of Otsego.

As a threshold matter, the Court notes that it has the jurisdiction to hear and determine this matter since the motion was filed within three years from the date of accrual which is the comparable time period for bringing negligence actions against a citizen of the state. (CPLR 214; CCA 10 [6]).

The factors that the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,

3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,

5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State, and

6. the Claimant has any other available remedy.

The issue of whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, Claimant must establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Id. at 11).

The essence of Claimant's allegations relate to the State's alleged involvement regarding the inspection and approval of the occupancy of these Premises. Claimant asserts that a building permit was issued for the Premises in September 10, 1997. Additionally, Claimant alleges that (1) in January of 1998, the inspections and code compliance were turned over to the State's Code Division due to animosity between the owners and the County Enforcement Officer; and (2) that the State's Code Division through its engineer, William Stewart, approved the County's issuance of a certificate of occupancy on March 30, 1998 "[n]otwithstanding that there were numerous existing building code violations including an open shaft in the floor of the premises which was unprotected." (Affidavit of William N. Cloonan, ¶ 9; Reply Affidavit, ¶ 2).

Generally, "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). Here, however, the State has refuted these two primary allegations with the affidavit of Mr. Stewart who possesses firsthand knowledge of these matters. First, Mr. Stewart avers that the Town of Hartwick passed a local law turning over code enforcement responsibility to Otsego County, but does not indicate that the inspections and code compliance were officially turned over to the Secretary by Otsego County pursuant to Executive Law § 381 (2).[1] Mr. Stewart admits that Otsego County officials requested his input into the situation due to prior animosity between the owners and County officials, but avers that "[t]he State of New York did not and never has issued a certificate of occupancy for the [Premises]". (Affidavit of William Stewart, ¶ 7). In support of this contention, the State has submitted a copy of the temporary certificate of occupancy dated March 30, 1998 which clearly shows that it was issued by the Otsego County code enforcement officer and not by the State's Code Division. (State's Exhibit B). As such, based upon this record, it appears the State's role in this matter was, at best, in an advisory or consulting role.

Therefore, the issue presented to this Court is whether the acts/omissions by a Code Division employee in such an advisory capacity may serve as a basis for liability against the State. For the reasons that follow, the Court finds that it does not and, as such, these allegations cannot support a finding that this proposed claim appears meritorious. Claimant does not specifically address these legal issues. In opposition, the State conclusively argues that the State did not issue any certificate of occupancy here and, in any event, has not waived its immunity for actions taken by the Codes Division. Neither party has cited any case law. Although the Court's own research did not reveal any case specifically asserting liability against the State based upon the acts/omissions of Code Division employees, there are cases sufficiently analogous to warrant review and consideration.

The analysis of whether the acts/omissions of Code Division employees are entitled to immunity begins with the well-settled principle that actions of government officials that are discretionary in nature are generally entitled to immunity, while ministerial acts are not. (Arteaga v State of New York, 72 NY2d 212). A discretionary act involves "[t]he exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result". (Tango v Tulevech, 61 NY2d 34, 41). A ministerial act is typically described as being "clerical or routine" in nature (Mon v City of New York, 78 NY2d 309, 313), such as retiring a warrant by a court clerk; issuance of marriage licenses; issuance of certificates of titles for motor vehicles. (Glowinski v Braun, 105 AD2d 1153, appeal dismissed 65 NY2d 637; Puffer v City of Binghamton, 59 Misc 2d 856; Ford Motor Credit Co. v State of New York, 133 AD2d 980). Once an action is distinguished as discretionary or ministerial in nature, the next step in the analysis requires that discretionary acts be further categorized as either judicial/quasi-judicial or non-judicial. In other words, a discretionary act can be characterized as: (1) discretionary and judicial/quasi-judicial or (2) discretionary and non-judicial. If the act is discretionary and judicial/quasi-judicial then the actions are entitled to absolute immunity. (Tarter v State of New York, 68 NY2d 511). On the other hand, if the actions are discretionary and non-judicial in nature, then a third step is required to ascertain whether the State is entitled to qualified immunity. Discretionary non-judicial actions are entitled to qualified immunity, except if the actions were taken in bad faith or without a reasonable basis. (Id).

That having been said, even at this early stage there can be no genuine dispute here that the involvement of the Code Division involved discretionary actions in investigating the Premises and applying the provisions of the New York State Uniform Fire Prevention and Building Code (hereinafter "Uniform Code"). In Miller v State of New York, 125 AD2d 853, appeal denied 69 NY2d 608, the Third Department determined that the issuance of permits by State Department of Health employees amounted to discretionary acts since it involved "[t]he exercise of judgment in applying the controlling Sanitary Code provisions to the facts as found." (Miller, 125 AD2d at 854; see also Burgundy Basin Inn v State of New York, 47 AD2d 692, appeal denied 37 NY2d 706 [issuance of a mass gathering permit under Sanitary Code is discretionary act]). This Court finds the facts at bar comparable to Miller in that Mr. Stewart's involvement under any scenario-advisory or not- involved an interpretation of the Uniform Code to the Premises. Such actions are clearly discretionary and non-judicial in nature and entitled to qualified immunity. Barring allegations of bad faith or a lack of a reasonable basis, neither of which Claimant alleges here against the State, the actions of the Code Division employee would be entitled to qualified immunity. (Tarter, 68 NY2d 511). As such, the Court finds that based upon this record the proposed claim does not appear meritorious.

With respect to the remaining factors, Claimant's counsel asserts that the physical incapacity of Claimant is sufficient excuse for the delay in filing the claim. Generally, in order to claim medical incapacity through the statutory period a claimant must submit a physician's affidavit substantiating such allegation. (Cabral v State of New York, 149 AD2d 453). Here, Claimant has not submitted such an affidavit, but has submitted a copy of an Order appointing an Article 81 guardian, together with Findings of Fact and Conclusions of Law from said proceeding deeming Claimant herein to be an incapacitated person in need of a guardian for person and property. The Court finds these submissions are sufficient to demonstrate a medical incapacity through the statutory time period and, as such, finds that Claimant has demonstrated an acceptable excuse.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. Claimant argues that the State's notice is evidenced by a letter from Mr. Stewart to the Otsego County Attorney dated February 7, 2001. (Claimant's Exhibit C). However, this letter pre-dates this accident by some 10 months. It appears Claimant is confusing the concept of notice of a dangerous condition relating to the burden of proof at trial as compared to establishing notice of the essential facts constituting a claim for the purpose of CCA 10 (6). The concept of notice in a late filing application relates to the State's notice of an accident after it has actually occurred, thereby permitting the State to investigate the claim if it so chooses. (Wolf v State of New York, 140 AD2d 692; Matter of Crawford v City Univ. of N. Y., 131 Misc 2d 1013). As such, whether the State knew or should have known of the alleged dangerous condition is not pertinent to a determination of whether the State had notice of the essential facts constituting a claim. Otherwise, in late filing motions, the State would be deemed to have notice of every claim arising from a dangerous condition it created or knew or should have known existed, even before an accident occurs. Claimant offers no other argument on the issue of notice and investigation and, as such, the Court must conclude that these two factors weigh against Claimant. With respect to the issue of substantial prejudice, while the State may well suffer some prejudice were this relief granted there is no argument that witnesses and documents are no longer available that would justify a determination of substantial prejudice. The Court finds a lack of substantial prejudice favors Claimant's motion.

The final factor is the availability of an alternate remedy. Neither party addresses this factor. It appears from Claimant's Reply papers that an Order to Show Cause seeking permission to file a late claim pursuant to General Municipal Law 50-e is pending in Otsego County Supreme Court. Accordingly, this factor weighs against Claimant.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that four of the six factors, including the all-important factor of merit, weigh against Claimant's motion.

Accordingly, for the reasons stated above, IT IS ORDERED, that Claimant's motion for permission to permit the late filing and service of a claim, Motion No. M-66465, is DENIED.

April 14, 2003
Binghamton, New York

Judge of the Court of Claims

[1]"Secretary" means the secretary of state. (Executive Law § 372 [15]).