New York State Court of Claims

New York State Court of Claims

BUREY v. THE STATE OF NEW YORK, #2004-034-592, , Motion No. M-68473


Permission to file and serve a late claim is denied. Proposed claim fails to establish even arguable merit and other remedies exist. Although claim was filed more than three years from date of incident, claim was timely served upon attorney general, and therefore the application is not time-barred

Case Information

ROBERT BUREY The caption has been amended sua sponte to reflect the proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the proper Defendant.
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 General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General\
Third-party defendant's attorney:

Signature date:
October 28, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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

1. Notice of Motion, dated November 26, 2003, stamped received by the Clerk of the Court on December 4, 2003, stamped returned on December 10, 2003, filed May 20, 2004;

2. Affidavit of Michael J. Skoney, sworn to November 26, 2003, with attached affidavit of Robert Burey, sworn to November 26, 2003, and exhibits;

3. Affidavit of Mailing of Lisa A. Godfrey, sworn to December 1, 2003, with attached exhibit;

4. Proposed Claim, denominated a "Notice of Claim;"

5. Affidavit in Opposition to Motion to File Late Notice of Claim of Wendy E. Morcio, sworn to December 11, 2003, filed December 12, 2003, with attached Affidavit of Ronald J. Reed, sworn to December 9, 2003;

6. Supplemental Affidavit in Opposition to Motion to File Late Notice of Claim of Wendy E. Morcio, sworn to June 7, 2004, filed June 8, 2004;

7. Affidavit of Michael J. Skoney, sworn to July 28, 2004, filed August 2, 2004, with attached exhibits;

8. Second Supplemental Affidavit in Opposition to Motion to File Late Notice of Claim of Wendy E. Morcio, sworn to July 29, 2004, filed August 2, 2004, with attached exhibit;

9. Affidavit of Matthew T. Mosher, sworn to September 10, 2004, filed September 13, 2004;

10. Affidavit of Lisa A. Godfrey, sworn to September 8, 2004, filed September 13, 2004, with attached exhibits.

For reasons that follow the Court will deny the requested relief.

Court of Claims Act § 10 (3) compels that a claim to recover for negligence or other unintentional tort be filed and served within 90 days of accrual, unless a notice of intention is served upon the Attorney General within that same time limit, in which case the allowable period for commencement would extend to two years from accrual. Those time limitations are jurisdictional in nature, and are to be strictly construed as conditions to the State's waiver of sovereign immunity (Alston v State of New York, 97 NY2d 159 [2001]; see also Welch v State of New York, 286 AD2d 496, 497-498 [2001]).

Relief from the failure to take timely action is authorized under Court of Claims Act §10 (6), which identifies six factors among those to be considered in such an application. The presence or absence of any specific factor is not determinative (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]; Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 [1991]). 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 movant has any other available remedy. Section 10 (6) renders such applications subject to the same overall time limitations set forth for suits asserting a like claim against a citizen of this State - here, three years from accrual, since the application concerns an unintentional tort (see CPLR 214 [5]).

The first issue to be resolved is whether the application is timely. The underlying incident purportedly occurred on February 7, 2001. The present motion was filed with the Clerk of the Court on May 20, 2004, more than three years following accrual, and on that basis the State contends that the application must be denied as untimely. Claimant, in turn, has represented that on December 1, 2003 the Attorney General's Office in Buffalo was initially served with the Notice of Motion and supporting papers by both personal delivery and ordinary mail. In addition, the Attorney General's Office in Albany, New York, was served by mail that same day. While the two affidavits of Lisa A. Godfrey, a legal secretary in the offices of Claimant's counsel, vary as to whether such service was by ordinary mail (see Affidavit of Michael J. Skoney, sworn to July 28, 2004, Exhibit A; see also Affidavit of Mailing appended to Notice of Motion filed May 20, 2004), or by certified mail, return receipt requested (see Affidavit of Lisa A. Godfrey, sworn to September 8, 2004), Defendant does not dispute that such service had been made in and about December 1, 2003. Since even ordinary mail service is proper in a section 10 (6) application (Sciarabba v State of New York, 152 AD2d 229 [1989]), the motion must be deemed to have been timely served.

Claimant's attempt to file his notice of motion on December 4, 2003, was initially rejected by the Clerk of the Court of Claims, apparently for lack of proof of service, as required under 22 NYCRR 206.8 (a) and 206.9 (b). An affidavit reflecting service as of December 1, 2003 did accompany the motion papers in the second tender for filing on May 20, 2004, which was accepted for filing by the Clerk. Since the statute of limitations would have expired long before the second tender, a question exists as to whether a late claim motion needs to be filed, as well as served, to be timely interposed. A review of Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 (2001), supports the conclusion that filing is not a consideration critical to the timing of such a motion. Noting that the motion papers and proof of service were filed with the Clerk of the Court before the statute of limitations had expired, the Appellate Division, Second Department in Unigard nevertheless relied upon the service provisions of CPLR 2103 to determine whether a late claim application had been timely made. The Court held that
[h]ere, service of the instant motion is analogous to the service of papers "in a pending action." Therefore, inasmuch as CPLR 2103 governs the service of papers "in a pending action," including the service of motion papers, the Court of Claims properly determined that service was complete upon mailing and that the motion was timely filed (Unigard, 286 AD2d at 61).
Similarly, in Sciarabba, 152 AD2d 229, the Appellate Division, Third Department, relied upon CPLR 2103 in determining whether regular mail service of a late claim motion constituted proper service. Critically, CPLR 2103 does not set forth any filing requirement for papers served by delivery or mailing. While sections 206.8 (a) and 206.9 (b) of the uniform rules set forth filing requirements, those provisions address the scheduling of such a motion once served, and thus do not alter the view that a late filing application is a generic motion, governed by CPLR 2103. For that reason the Court concludes that under CPLR 2103 Claimant's motion was timely interposed upon service in December 2003, notwithstanding that his failure to properly file delayed the scheduling of the motion to a point beyond the expiration of the statute of limitations.

The Court will proceed to address the merits of the requested relief.

Of the six factors set forth in section 10 (6), 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 [2002]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). 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 record there is reasonable cause to believe that a valid claim exists (see Dippolito, 192 Misc 2d at 396-397; Matter of Santana, 92 Misc 2d at 11-12).

Claimant has failed in several respects to demonstrate the arguable merit of his application. Court of Claims Act § 11 (b) requires that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed." Conformance with those pleading provisions requires substantial compliance, rather than absolute exactness (see Heisler v State of New York, 78 AD2d 767 [1980]). Here, the proposed claim urges, without amplification, that Claimant sustained injury on February 7, 2001, at 225 Oak Street, in Buffalo, allegedly owned by the New York State Insurance Fund, due to its carelessness, recklessness and negligence. Even measured under a standard of substantial compliance the failure to set forth the approximate time of the incident, the location at the premises where it allegedly occurred, the manner of injury, the basis upon which negligence is asserted and some indication of damage renders the proposed claim jurisdictionally deficient (see Lepkowski v State of New York, 1 NY3d 201[2003]).

The balance of the submissions also fail to establish merit. Understanding that Claimant has now set forth some minimal description of how the accident occurred, his lack of detail once again compounds the difficulty faced by the State in ascertaining its liability. In his affidavit Mr. Burey claims to have fallen on ice outside the building, while approaching his office, although he still fails to set forth exactly where the accident occurred. Such information is of greater significance in view of Claimant's apparent amendment of his claim as this matter has progressed. Although he initially premised his claim on the State's alleged ownership of the building, Claimant has not challenged Defendant's assertion that it did not own the building, or possess snow removal responsibilities under its lease. Instead, counsel has now raised the potential for recovery upon a possible violation of Buffalo City Code § 413-50 (A), which inter alia creates an actionable duty on the part of owners and occupants to clear snow and ice from the sidewalks that adjoin their premises. Such ordinances, however, clearly address public sidewalks, which are part of the street or highway (see Pardi v Barone, 257 AD2d 42, 44-45 [1999]), and not private walkways that are beyond the municipal property lines. Thus, a clear description of the location of the claimed fall is critical to the State's assessment of the matter, and Claimant's assertion of a viable cause of action (see Schneider v State of New York, 234 AD2d 357 [1996] [lack of specificity in identifying picnic area where fall occurred warranted dismissal of claim for noncompliance with section 11 (b)]). Further, since the City Code provision now relied upon mandates removal of snow and ice before 9:00 a.m., the failure to cite the time of the occurrence has increased significance. The lack of a description of how the State breached a duty of care also continues to impact on merit. "Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet (section 11 [b]'s ) requirements" (Heisler, 78 AD2d at 767-768). Lastly, the Court notes that most of the factual detail set forth in the Workers' Compensation records attached to the motion papers has not been affirmed by Claimant, and in some respects appears to be inconsistent with arguments that he now asserts. Indeed, if the Court credited the unsubstantiated references within those records that Claimant fell approximately 15 feet from the entrance, then his argument regarding the applicability of the municipal snow removal ordinance would possess even less weight. For those reasons Claimant's motion papers also fail to demonstrate the arguable merit of the proposed claim.

Other considerations also support the denial of the motion. Mr. Burey would have a possible remedy against the building owner for any negligence in its snow and ice removal on its premises. The landlord would also bear potential liability not only to Claimant for any violations of the City of Buffalo's sidewalk cleaning ordinance, but also to the State for any concurrent liability that might be asserted against that tenant, based upon the lease agreement. The suggested excuse for lack of timely action, i.e., that Claimant believed that his exclusive remedy would have been a Workers' Compensation claim, has been held to be an insufficient excuse (see Matyjasik v State of New York, Ct Cl, September 6, 2002, Minarik, J., Claim No. None, Motion No. M-64359 [UID No. 2002-031-036]).[1] Moreover, faced with at least the potential that an accident outside his work premises might not support a Workers' Compensation remedy, Claimant's failure to preserve his litigation options through the timely service of a notice of intention to file a claim becomes more of a matter of ignorance, which also is not an appropriate excuse (see Matter of E.K. v State of New York, 235 AD2d 540, 541 [1997]).

Defendant has acknowledged that the State Insurance Fund received timely notice of the incident, but still urges prejudice and a lack of ability to investigate as factors supporting denial. That assertion has some merit. While it is likely that the State's Workers' Compensation carrier conducted some investigation of the matter, the scope of which is not presented herein, it appears that the State did not anticipate any liability claim, or engage in any direct review of the incident. The Workers' Compensation records submitted by Claimant reflect a focus on his scope of employment, rather than any liability-related issues. For that reason the carrier's prompt investigation cannot be deemed a substitute for a tort-related investigation by the State itself. Based upon the foregoing, it is hereby

ORDERED, that the motion for leave to late file a claim under Court of Claims Act § 10 (6) is denied. The Clerk of the Court is directed to close the file.

October 28, 2004
Buffalo, New York

Judge of the Court of Claims

[1] Unpublished decisions and orders are available on the Court of Claims web site at