New York State Court of Claims

New York State Court of Claims

IMOKA v. THE STATE OF NEW YORK, #2005-030-923, Claim No. None, Motion No. M-70103


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:
James Montgomery, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 28, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on claimant's motion for permission

to file a late claim: Notice of Motion, Affirmation and Exhibits; Affirmation in Opposition.

Claimant seeks permission to file a late claim, pursuant to Court of Claims Act §10(6), arising out of a December 19, 2004 incident in which he was assaulted and robbed by one Kirk Paige in Queens. Claimant alleges that he was robbed while walking on the street in Queens and that he then pursued Paige on foot and apprehended him at the corner of 65th Street and 35th Avenue, on a footpath adjacent to an unfenced and unguarded highway construction site on the Brooklyn-Queens Expressway. Paige reached down and picked up a rock with which he struck claimant in the head. Claimant alleges that the State of New York was negligent in failing to fence or guard the construction site, failure to clear rubble and failing to adequately supervise the work of its contractor and that such negligence was a proximate cause of his injuries.

Claimant's counsel advises that he served a notice of claim on the City of New York but that further investigation disclosed that the state is also involved with the subject construction project. Counsel alleges that the state would not suffer substantial prejudice because the Queens County District Attorney has already investigated the incident as part of its criminal investigation, which resulted in the indictment of Paige, and also because the condition of the area did not change between the date of the incident and the submission of the instant motion papers.

In opposition to the motion, defendant argues that claimant's confusion as to the responsibility for the construction site is not "excusable" within the meaning of the statute, that the state had no notice of the incident until the instant motion was made, that claimant has a possible alternate remedy and that claimant has not demonstrated the existence of a potentially meritorious claim.

Defendant is correct in that mistake as to the proper governmental entity to sue is not generally considered excusable (see e.g.
Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854
). Defendant is also correct in noting that notice to the Queens County District Attorney is not notice to the State of New York. Defendant does not argue that it would suffer substantial prejudice should the motion be granted and the court does not perceive any such prejudice, primarily since the motion was made approximately one month after the expiration of the statutory 90-day period (Court of Claims Act §10[3]). The court also agrees with defendant that claimant has a possible alternate remedy in the form of a civil action against his assailant, "possible" because claimant's counsel may be correct in speculating that Paige has no means with which to satisfy a judgment.

The deciding factor is whether claimant has presented an apparently meritorious claim (see
Prusack v State of New York,117 AD2d 729; Wallace v State of New York, Ct Cl, Read, J., decision and order dated June 27, 2000, UID No. 2000-001-030)
. Defendant maintains that the connection between the alleged negligence and the assault on the claimant is so attenuated that the conduct upon which claimant seeks to ground liability cannot, as a matter of law, be held to be a proximate cause of his injuries. Assuming, for the purpose of this motion that (1) the state is responsible for the condition of the construction site and (2) the condition was such that, had a person been injured by tripping over a rock or other debris or in some other typical "premises liability" scenario, negligence would be a possible conclusion, the court nevertheless finds that the allegations of the proposed claim:
are not sufficient to attribute liability to defendant in light of the unexpected criminal act of a third party, which in this case constitutes a superceding and intervening cause relieving defendant from liability as a matter of law. (Marenghi v New York City Tr. Auth., 151 AD2d 272, affd 74 NY2d 822.). Falcone v Manhatttan & Bronx Surface Tr. Operating Auth. (166 AD2d 271).
In cases such as these, "liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). A criminal assault is not a normal or foreseeable consequence of the presence of a rock at a construction site, or on a path adjacent to a construction site, regardless of how sloppy or negligent a contractor or site owner is with respect to the condition of the site. To the contrary, the causation of the assault on the claimant may be found in claimant's decision to pursue Paige after he had been robbed and in Paige's decision to commit a criminal act, a decision he undoubtedly would have made regardless of whether there was a rock handy. In any event, the court cannot find an appearance of merit in the proposed claim.

On balance, the court finds that the circumstances do not warrant the exercise of discretion pursuant to Court of Claims Act §10(6). Accordingly, the motion is denied.

September 28, 2005
White Plains, New York

Judge of the Court of Claims