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 ).
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,
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).
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
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.