New York State Court of Claims

New York State Court of Claims

PESICKA v. THE STATE OF NEW YORK, #2003-034-003, Claim No. NONE, Motion No. M-67136


Claimant's motion for leave to file a late claim under Court of Claims Act § 10(6) is granted. Claimant failed to demonstrate acceptable excuse but established merit, notice, opportunity to investigate, the lack of prejudice, and the absence of other available remedy.

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:
Defendant's attorney:
New York State Attorney GeneralBY: WILLIAM D. LONERGAN, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 25, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has applied for leave to file a late claim pursuant to Court of Claims Act § 10(6). The following papers have been submitted to the Court for review:

1) Notice of Motion, dated July 11, 2003;

2) Affidavits of William Berard, III, Esq., sworn to May 9, 2003, Mary Pesicka, sworn to July 3, 2003 and Walter Uhrman, Esq., sworn to May 20, 2003, in support of the application, with exhibits attached;

3) A "Proposed Notice of Claim," verified by David P. Feldman, Esq., as counsel for Claimant, on July 21, 2003;

4) Affidavits of William D. Lonergan, Esq., sworn to August 21, 2003, and Louis Payne, sworn to August 15, 2003, in opposition to the application, with exhibits attached.

On consideration, the Court will grant the requested relief, provided that the Claim is filed and served within thirty days of the filing of this Decision and Order, and further, that the Claim filed and served is designated as such, rather than the "Proposed Notice of Claim" reflected in Claimant's submissions.

This application arises from an incident that purportedly occurred on July 22, 2002, while Claimant was visiting Niagara Falls State Park from her home in California. Claimant alleges that as she proceeded down a walkway to Terrapin Point on Goat Island, she stumbled and fell at the top of a set of steps, sustaining injuries that included a fractured tibia. The New York State Park Police assisted Claimant following her injury, and filed an accident report the next day.

It appears that Claimant returned to California on July 23, 2002. She first took action regarding this matter in December of 2002, when she wrote Walter Uhrman, an attorney in California. Uhrman, in turn, has represented that after receiving Claimant's letter he telephoned the Attorney General's Office in Albany, and wrote to the Honorable Susan Phillips Read, then the Presiding Judge of the Court of Claims, to determine the time constraints and procedures for filing a claim. Later, in March of this year, he contacted Attorney William Berard, III, to act as counsel in this state. Berard, in turn, has confirmed that Uhrman had contacted him on March 4, 2003, and that he subsequently began to investigate the incident. Berard has affirmed that his investigation was impaired through early May of this year, since the State had blocked access to the area in question over the winter and spring months. At some point Claimant retained her current attorney, David P. Feldman, who filed and served this application on her behalf on or about July 23, 2003.

Claimant did not serve a notice of intention to file a claim or serve and file a claim proper within ninety days following the incident, as required by Court of Claims Act § 10(3). Notwithstanding a reference to CPLR 2004 in her Notice of Motion, Claimant clearly now seeks leave to file a late claim pursuant to Court of Claims Act § 10(6). Such relief rests within the broad discretion of the Court, although the statute does delineate six factors among those to be considered in making its determination. The presence or absence of any one factor is not controlling (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981; Matter of Gavigan v State of New York, 176 AD2d 1117, 1118). Those factors consist of the following: whether the delay in filing the claim was excusable; whether the State had notice of the essential facts constituting the claim; whether the State had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file and serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and whether the Claimant has any other available remedy.

Of the six factors, the appearance of merit has been characterized as the most decisive, since it would be futile to permit a meritless claim to proceed (see, Dippolito v State of New York, 192 Misc 2d 395, 396-397; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). To meet that burden a movant must establish that the proposed claim is not patently groundless, frivolous or legally defective, and that from a review of the entire record there is reasonable cause to believe that a valid claim exists (see, Dippolito v State of New York, supra, at 396-397; Matter of Santana v New York State Thruway Auth., supra, at 11-12). Here, it is Claimant's contention that the manner of construction of the stairway, set into the downward slope beneath the line of vision, and obscured by the slope itself, created a false appearance of a smooth downward slope that led to her fall. Claimant has noted further that the stairway was not marked with any signs, that no handrail was provided and that park personnel admitted to her that the area had been the location of earlier falls. The Court also has reviewed Exhibits B and C of Payne's opposition, photographs of the northern walkway where the police report indicates the incident had occurred. From those photographs it appears that only a portion of the walkway had been constructed with steps. That stairway immediately adjoined a broader path that consisted of a flat downward slope. The entire walkway appears to have been paved with a macadam surface, although the edges of the steps are of a different color or construction. The photographs provide some corroboration for Claimant's contention that the angle of the slope itself impaired a clear view of the start of the stairway.

Defendant has challenged Claimant's assertions of merit on two grounds: that Claimant had initially admitted to the Park Police that she did not see the steps because she had not been paying attention; and, that Claimant has failed to support her allegations with any expert affidavit. In the Court's view, the purported admission of a lack of care is not determinative, and instead should be weighed in assessing causation and comparative fault. Regarding the lack of an affidavit from an expert, the Court has reviewed Nyberg v State of New York, 154 Misc 2d 199, and Jolley v State of New York, 106 Misc 2d 550, relied upon by Defendant. The Court accepts that in claims relating to the complexities of highway design, speed regulation and signage, as presented in Nyberg, or the medical malpractice urged in Jolley, expert evidence is critical to a fair adjudication, since a lay claimant is incompetent to offer engineering or medical conclusions, and such issues would extend beyond the common knowledge and experience of the trier of fact. Here, however, the claim alleged is one of an unsafe condition based upon a lack of ready perception, as well as failure to warn. Such matters can arguably be established by lay testimony alone (see, Sousie v Lansingburgh Boys & Girls Club, Inc., 291 AD2d 619, 620 [whether stairway sufficiently lit to allow safe passage did not require expert evidence]; Chafoulias v 240 E. 55th St. Tenant Corp., 141 AD2d 207, 210-211 [claim of optical confusion from position of vestibule steps near entrance door did not require expert evidence]).

Other factors weighing in favor of a grant of relief include the prompt knowledge obtained by Defendant of the essential facts that constitute the claim, and with that information the opportunity to investigate its underlying circumstances. By promptly responding and collecting data for their report, Park Police were able to memorialize the exact date and time of the accident, its specific location, weather conditions, Claimant's name and address, her own potential culpability, the type of shoes she had been wearing, her degree of injury, and her initial hospital and medical providers. No claim has been made that the location was reconstructed in any way following the incident, and Defendant's very submission of photographs and distance measures support that even now it can investigate the claim. Defendant has not otherwise identified any means by which the delay has prejudiced its ability to defend. The Court also has considered that no alternative remedy for Claimant is identifiable from the submissions.

Claimant's proffered excuses for her failure to timely file are weak. She may have required a cast on her leg for six weeks, but Claimant has not represented that her condition prevented her from contacting counsel, or otherwise filing a claim. Moreover, that six-week disability would not explain her inaction over the significant balance of her ninety-day filing period. So also, Claimant's ignorance of the filing process, or the identity of the owner of the park, cannot fairly serve as justification for her delay, since that lack of information did not preclude her from contacting counsel several months later, in December of 2002. Inaction resulting from simple lack of knowledge has not been recognized as an acceptable excuse in any event (see, Matter of E.K. v State of New York, 235 AD2d 540, 541, lv denied 89 NY2d 815 [ignorance of time constraints for filing claim not valid excuse]). The explanations offered by California and New York counsel regarding their efforts at investigating the matter involve time periods that followed the expiration of the ninety-day filing requirement. While such conduct could bear on any claim by Defendant of prejudice, the subsequent diligence of counsel has no bearing on the crucial issue of whether Claimant has justified her inaction over the initial ninety-day period that followed the accident (see, Cole v State of New York, 64 AD2d 1023). Nevertheless, Claimant's lack of sufficient excuse for her delay is not, by itself, controlling on the issue (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d at 981), and the other factors referenced above weigh strongly in Claimant's favor.

Lastly, the Court is concerned that the proposed Claim, while satisfying the substantive requirements of Court of Claims Action § 11, is improperly denominated, and could lead to additional confusion upon being filed and served.

Based upon the above it is

ORDERED, that Claimant's motion is granted. The Claim is to be filed and served within thirty days of the filing of this Decision and Order, in conformity with the requirements of the Court of Claims Act § § 10, 11, and 11-a, and is to be designated as such, rather than a "Proposed Notice of Claim."

September 25, 2003
Buffalo, New York

Judge of the Court of Claims