New York State Court of Claims

New York State Court of Claims

O'BRIEN v. THE STATE of NEW YORK, #2003-033-002, Claim No. None, Motion No. M-65863


Synopsis

Motion to file a late claim is granted.

Case Information

UID:
2003-033-002
Claimant(s):
FLORENCE O'BRIEN and VINCENT O'BRIEN
Claimant short name:
O'BRIEN
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-65863
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Spinola & Mirotznik by: Pollack, Pollack, Isaac &
De Cicco, Esqs.By: Brian J. Isaac, Esq.
Defendant's attorney:
Eliot Spitzer New York State Attorney GeneralBy: Ricardo Montano, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 3, 2003
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion of Florence O'Brien and Vincent O'Brien (hereinafter " movants") for permission to file a late claim pursuant to Court of Claims Act § 10(6), relating to an alleged trip and fall due to a dangerous and defective sidewalk.[1]

This action arises out of an accident which occurred on August 19, 2001, on the sidewalk and/or curb near the northeast corner of Hempstead Turnpike and Oriole Road, Levittown, when movant[2] alleges she was caused to trip and fall due to a dangerous, defective and broken sidewalk and curb. According to movant she attempted to cross over the sidewalk area in order to enter her husband's vehicle, which had pulled up in the street next to the subject sidewalk. There were no barricades or warnings around the area and there were no alternative routes to enter the street. There were also no construction workers doing any work in this area. As movant walked on the sidewalk, she tripped over broken pieces of cement and stumbled over a defective curb lip and fell to the ground. Movants claim that the condition of the sidewalk came about in the course of a beautification project undertaken by the State of New York, and therefore, the condition was created by the State. As a result of the accident, movant sustained a fracture to her left arm and underwent surgery (O'Brien Affidavit pp. 1-2).[3]

In order to determine whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act § 10(6):
(1) whether the delay in filing the claim was excusable;

(2) whether the State had notice of the essential facts constituting the claim;

(3) whether the State had an opportunity to investigate the circumstances underlying the claim;

(4) whether the claim appears to be meritorious;

(5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and

(6) whether the movant has another available remedy.
The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive ( Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

Movant attributes the failure to timely file a claim to her belief that the sidewalk and curb were solely property of and under the control of the County of Nassau and/or the Town of Hempstead and that on October 26, 2001, a notice of claim was timely served upon the County of Nassau and the Town of Hempstead (Affirmation of Brian J. Isaac, p.1). It is only recently that movant discovered that the defective condition allegedly arose as a result of the State's beautification project. However, movant's ignorance of the law cannot in itself be a reasonable excuse ( Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854, Sevillia v State of New York, 91 AD2d 792).

The second, third and fifth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

As stated, movant tripped and fell to the ground due to an alleged dangerous and defective sidewalk. Annexed as Exhibit G to the Affirmation of Brian J. Isaac is a police report and a report from the Levittown Fire Department with regard to the accident. The police report was made only

to the Nassau County Police Department. This does not give notice to the State or allow the State opportunity to investigate. ( see Caselli v City of New York, 105 AD2d 251; Plantin v New York City Housing Authority, 203 AD2d 579).

But, this is not necessarily a substantial prejudice to the State.

While the presence or absence of any one of the six factors is not dispositive, ( see Bay Terrace Coop. Section IV v New York State Employee's Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most critical factor always is the apparent merit of the proposed claim.

These movants need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists. ( see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 ). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant's request.

In the instant case, movant sustained a fractured left arm when she tripped and fell on the dangerous and defective sidewalk. Annexed to her affidavit is a photograph of the sidewalk displaying its condition. Annexed as Exhibit E to the Affirmation of Brian J. Isaac are copies of portions of the plans for the State's beautification project that include the sidewalk. The Court concludes that there is an appearance of merit to go forward.

Based on the foregoing, the Court concludes that the majority of the statutory factors favor movants' application and therefore grants movants permission to file a late claim.

The Court directs movants to file and serve a claim within forty-five (45) days after this order is filed and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a.


March 3, 2003
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on movants' motion for permission to file a late claim pursuant to Court of Claims Act § 10(6) : Notice of Motion dated September 25, 2002 and filed September 30, 2002; Affirmation of Brian J. Isaac, Esq. In Support of Motion with annexed Exhibits A-G dated September 25, 2002 and filed September 30, 2002; Affirmation in Opposition of Ricardo Montano, Esq. dated December 2, 2002 and filed December 4, 2002; Reply Affirmation of Brian J. Isaac dated December 10, 2002 and filed December 13, 2002.
[2]All references of the Court to the movant shall be to Florence O'Brien. The Court recognizes action of Vincent O'Brien as a derivative suit.
[3]The Court references to page numbers in movant's affidavit and attorney's affirmation because there are no numbered paragraphs.