New York State Court of Claims

New York State Court of Claims

WILLIAMS A/K/A KNOWLES v. THE STATE OF NEW YORK, #2004-034-598, , Motion No. M-67841


Claimant's motion for leave to file a late claim is granted. Slip and fall at college has appearance of merit, despite Defendant's assertion of a "storm in progress" rule. Defendant had the opportunity to investigate the incident at the time of occurrence, and no other remedy is available to Claimant.

Case Information

CAROL A. WILLIAMS (AKA CAROL A. KNOWLES) The caption has been amended sua sponte to reflect the only proper Defendant.
Claimant short name:
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The caption has been amended sua sponte to reflect the only proper Defendant.
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Claimant's attorney:
Defendant's attorney:
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Signature date:
November 10, 2004

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See also (multicaptioned case)


This is an application for leave to late file a claim. The following papers have been submitted for review:

1. Notice of Motion, dated December 31, 2003, filed December 31, 2003;

2. Affirmation in Support of James P. Davis, Esq., affirmed December 31, 2003;

3. Proposed Claim for Damages, verified December 29, 2003, appended as an attachment to motion papers;

4. Attorney's Opposing Affirmation of Paul Volcy, dated January 15, 2004, filed January 21, 2004, with attached exhibits;

5. Supplemental Affidavit of Carol A. Knowles, sworn to February 4, 2004, filed February 6, 2004;

6. Supplemental Affidavit of Merit of Carol A. Williams (AKA Carol A. Knowles), sworn to February 4, 2004, unfiled;

7. Consent to Change Attorney (Substitution), dated July 26, 2004, received by the Clerk of the Court on August 4, 2004.

This motion arises from an accident that allegedly occurred on December 31, 2001, at approximately 9:15 p.m., on the campus of the State University College at Buffalo. Claimant contends that while acting as a volunteer as part of a "First Night" celebration at the sports arena at the college, she lost her footing and fell on a sidewalk area outside the building's southwest exit doors. Ms. Williams asserts that her fall and resulting injuries were the result of the college's failure to properly clear the area of snow and ice. On review the Court will grant Claimant's application, subject to the amendment of a clear mistake in the recitation of the date of the incident.

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 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 - notably, three years from accrual for unintentional torts (see CPLR 214 [5]), such as that alleged herein. That limitation has significance in this matter, since the proposed claim recites that the incident occurred on December 31, 2000, an accrual date that both parties apparently agree would be time-barred.[1] Clearly, that date is a mistake, as Claimant herself has listed a December 31, 2001 accident date in two subsequent affidavits. That assertion also conforms with the date listed in the accident report the college's Department of Public Safety prepared immediately after the incident. The Court will rely upon the corrected date in weighing this application.

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 Claimant 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).

As with all landowners the State has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (Preston v State of New York, 59 NY2d 997 [1983]). Ascertaining a standard of reasonableness must be undertaken "with an awareness of the realities of the problems caused by winter weather" (Goldman v State of New York, 158 AD2d 845, 845 [1990], quoting Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [1988]).

Claimant asserts that she slipped and fell on an accumulation of ice and snow on a sidewalk area outside of a college building where a New Year's Eve celebration was being conducted. In response Defendant submitted meteorological records supporting that an unusual storm had deposited close to seven feet of snow in areas of the region over a period of several days through December 28, 2001, thereby creating an emergency circumstance. The Court is mindful of the "storm in progress" rule, wherein a landowner must be afforded an adequate time following the cessation of a storm to clear accumulated snow and ice resulting therefrom before liability can attach (Cerra v Perk Dev., 197 AD2d 851 [1993]; see also Bertram v S V Danco Corp., 300 AD2d 1108, 1109 [2002]). However, those same meteorological records also reflect that only traces of snow fell over the three days immediately prior to the incident. Claimant's challenge to the reasonableness of the college's conduct in clearing snow and ice over those three days, and in hosting an event in light of such snow accumulations allow for at least potential merit, a factor that thus weighs in Claimant's favor.

The three interrelated factors of notice, an opportunity to investigate, and prejudice also favor Claimant's position. The campus police responded immediately after the incident to assist Claimant, call an ambulance, and prepare a report. That report extended beyond a simple notation of injury, and included information regarding the claimed manner of fall, the condition of the sidewalk area, the type of footwear worn, the tread pattern of that footwear, and the general weather conditions. The Department of Public Safety's investigation continued to the point of contacting Ms. Williams several weeks after the incident to obtain further information regarding the status of her injuries. The thoroughness of that immediate investigation, that extended to causes of the accident, negates any claim of prejudice from the failure to timely file. The absence of an alternative remedy also would tend to support the grant of relief.

One factor does weigh against Claimant the principal excuse offered, a reluctance to sue because an emotional tie to the institution from which she had graduated, may be understandable at an emotional level, but hardly constitutes an impediment to action. The failure to timely act based upon emotional ambivalence has been recognized as an invalid excuse (see Kozak v State of New York, 35 AD2d 909 [1970] [indecision motivated by spouse's employment with the State not sufficient excuse]).

Based upon the above, it is hereby

ORDERED, that the motion to late file is granted. Claimant is directed file and serve her claim in conformity with Court of Claims Act § § 10, 11 and 11-a within 30 days of the date of filing of this Decision and Order. Her claim is to reflect an accrual date of December 31, 2001.

November 10, 2004
Buffalo, New York

Judge of the Court of Claims

[1] Although moot in light of the date correction, the Court questions whether an application based upon a December 31, 2000 accrual actually would have been untimely, since the motion was served and filed on December 31, 2003 (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]).