New York State Court of Claims

New York State Court of Claims

PALACIOS v. THE STATE OF NEW YORK, #2004-016-080, Claim No. 108994, Motion Nos. M-68910, CM-69121


Synopsis


Claim was dismissed for lack of service on defendant and late claim motion alleging injury from closing elevator at Bronx Family Court was denied.

Case Information

UID:
2004-016-080
Claimant(s):
MARIA PALACIOS
Claimant short name:
PALACIOS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108994
Motion number(s):
M-68910
Cross-motion number(s):
CM-69121
Judge:
Alan C. Marin
Claimant's attorney:
Fraiden & Palen, Esqs.By: Marion A. Palen, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Esq., AAG
Third-party defendant's attorney:

Signature date:
December 10, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claim no. 108994 was filed on March 4, 2004. No affidavit of service on defendant is contained in the Court's file, nor is an answer contained in such file. The underlying claim alleges that on February 3, 2004, an elevator door at the Bronx Family Court suddenly closed and injured the hand of claimant Maria Palacios.

By Order to Show Cause returnable October 20, 2004 and denominated as motion no. M-68910, Ms. Palacios was directed to show cause why this claim should not be dismissed on the ground that she failed to comply with the service requirements of section 11 of the Court of Claims Act (the "Act"). In cross-motion no. CM-69121, Palacios cross-moves for permission to file a late claim pursuant to §10.6 of the Act.
* * * Claimant concedes that she did not serve her claim on defendant as required by §11 of the Act. "It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). Accordingly, the Court lacks jurisdiction over claim no. 108994 and it must be dismissed.
As to Palacios' late claim motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, claimant reported the incident to a court officer and an "Aided Report" was prepared that day. Defendant raises no argument as to these three factors and I find that on balance, they have been met.

As to an alternate remedy, as set forth more fully below, claimant's remedy lies against the City of New York, which she has sued in Supreme Court, and thus this factor has not been met. With regard to excuse, claimant asserts that the claim was not served because of law office error. Such is not a valid excuse for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

Finally, it must be determined whether the proposed claim appears meritorious. Defendant has submitted documentation that the Bronx Family Court at 900 Sheridan Avenue is owned by the City of New York. See exhibits A and B to the November 10, 2004 affirmation of Susan J. Pogoda.

While the provision of judicial facilities is essentially a local function, one part of such responsibility has been transferred to the State of New York: "commencing April first, nineteen hundred ninety-eight, the state shall be responsible for the cleaning of court facilities . . ." Judiciary Law §39-b.2. "[T]he term ‘cleaning of court facilities' shall mean those services and activities that are necessary to insure that the interior of each court facility is and remains a clean and healthful environment in which to transact the business of the unified court system. These services and activities include, but are not limited to: removal of trash and debris; maintenance of appropriate standards of hygiene; painting; pest control; and replacement of consumable items such as light bulbs, soap, toilet paper and paper towelling. They also shall include the making of minor repairs in accordance with rules of the chief judge." Judiciary Law §39-b.1(b).

Nothing in claimant's papers suggests that her accident is at all related to the State's §39-b.2 responsibilities. Rather, she alleges that her hand was injured when an elevator door suddenly shut. In sum, claimant fails to meet the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (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."

For the foregoing reasons, having reviewed the submissions,[2] IT IS ORDERED that motion no. M-68910 be granted and claim no. 108994 be dismissed. IT IS FURTHER ORDERED that cross-motion no. CM-69121 be denied.


December 10, 2004
New York, New York

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




  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The following were reviewed: the Court's Order to Show Cause on motion no. m-68910; claimant's notice of cross-motion no. CM-69121with affirmation in opposition to Order to Show Cause and in support of cross-motion and exhibits 1-9; and defendant's affirmation in response to Order to Show Cause and in opposition to cross-motion.