New York State Court of Claims

New York State Court of Claims

SILVER v. THE STATE OF NEW YORK, #2005-033-148, Claim No. 110092, Motion Nos. M-70177, CM-70304


Synopsis



Case Information

UID:
2005-033-148
Claimant(s):
KIRBY SILVER
Claimant short name:
SILVER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110092
Motion number(s):
M-70177
Cross-motion number(s):
CM-70304
Judge:
James J. Lack
Claimant’s attorney:
Sacks and Sacks, Esqs.By: Daniel Weir, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 16, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim by Kirby Silver (hereinafter “claimant”) for personal injuries due to the alleged negligence of the defendant, the State of New York (hereinafter “State”) for creating a dangerous condition which caused claimant’s golf cart to flip. The incident occurred on August 24, 2004, at or about 1:00 p.m. at the Bethpage State Park Golf Course, Bethpage, New York.

The State now moves to dismiss the claim[1] for claimant’s failure to particularize the place where the claim arose pursuant to Court of Claims Act §11(b). Claimant cross-moves for permission to file a late claim pursuant to Court of Claims Act §10(6)[2].

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. There must be sufficient detail to enable the State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, aff’d 98 AD2d 902). Pursuant to the Court of Claims Act, a claim must include the time when and place where the claim arose, the nature of the claim, items of damage or injuries sustained as well as the total sum claimed. If the original document does not include all that is essential to constitute a claim, the document is jurisdictionally defective (Grande v State of New York, 160 Misc 2d 383). The claim is subject to dismissal and “a lack of prejudice to the State is an immaterial factor” (Byrne v State of New York, 104 AD2d 782, 784, lv denied 64 NY2d 607).

In Grande, claimant was involved in a motor vehicle accident when a tree fell on his motor vehicle. Claimant identified the location as traveling along Route 25A when a tree fell on his car. In another paragraph, claimant mentioned the Village of Brookville. The court inferred that the accident happened on Route 25A in Brookville. Given the lack of traveling direction, intersecting roadways or any other landmark the court found the claim to be jurisdictionally defective.

In the present case, claimant served a claim (defendant’s Exhibit A) giving two descriptions of the location. In paragraph 3, the location is listed as “Bethpage State Park Golf Course . . .” In paragraph 5, the claim gives the location as being “in close proximity to the cart path in close proximity to the tee off area at the ninth or tenth hole and the area adjacent thereto.”

Michelle Somma is the Land Management and Regulatory Affairs Coordinator in the Long Island Regional Office of the New York State Office of Parks, Recreation and Historic Preservation. Her responsibilities include investigating claims. The State attached her Affidavit in support of its motion. According to Ms. Somma, Bethpage State Park has five 18 hole golf courses, is comprised of approximately 1,477 acres, and crosses two counties. Ms. Somma and her staff tried to piece together the clues in the claim to determine if they could discover the location of the incident. However, given the time of occurrence listed in the claim and the lack of information in the claim as to where claimant was or which course he was playing on, it was impossible to determine where claimant was. In addition, there were no sources or records indicating that a patron had been injured or a golf cart had been damaged on that date.

Claimant opposes defendant’s motion by stating the State has not been prejudiced and they have been able to conduct a full and thorough investigation. What counsel fails to grasp is that without his affirmation, defendant would not have ever known that claimant was playing on the incident date or that he was in a charity event. While defendant was aware of the event, the event itself did not start until a half hour after claimant’s accident - according to the claim.

As the court stated in Grande,
[t]he defendant is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11 (Maurer v State of New York, M-46911, Hanifin, J., Apr. 6, 1993). Further, the lack of prejudice is not a factor with regard to determining jurisdictional questions in the Court of Claims (Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

(Grande at 386, 387). A reading of the four corners of the claim gives no indication as to where claimant’s accident occurred with any specificity. The claim indicates the accident could have been in close proximity to any one of eight possible tee boxes.[3] The claim fails to satisfy the pleading requirements of Court of Claims Act §11.

The Court grants defendant’s motion to dismiss the claim.

The Court turns its attention to claimant’s request to file a late claim pursuant to Court of Claims Act §10(6).

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

Claimant does not address his failure to timely file and serve a proper claim. Throughout claimant’s cross-motion, he argues that the claim was proper, the State was able to investigate and has suffered no prejudice. Claimant attributes his failure to timely serve a notice of intention to ignorance. The ignorance of the law is not a reasonable excuse (see Sevillia v State of New York, 91 AD2d 792).

The second, third and fifth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

Claimant argues that these factors favor him, just by examining defendant’s papers. However, defendant did not have notice of the essential facts within 90 days of the date of occurrence. Defendant was unaware that claimant was on the golf course by his absence from the starter sheets. It was not known claimant was involved in the Easter Seals outing since claimant’s accident happened on the golf course a half hour before his outing was scheduled to begin. In addition, it was unknown which golf course this happened on, which of eight tee boxes it was near, and what measurement from a designated landmark the alleged defect was. Also, there are no patron accident reports for claimant’s incident. Defendant did not have an opportunity, nor can it find this alleged “permanent” defect. Granting the motion would result in substantial prejudice. Claimant must show more in order to demonstrate defendant created the condition and it is permanent in nature. Therefore, none of these factors favor claimant.

Claimant does not appear to have an alternative remedy.

While the presence or absence of any one of the six factors is not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979), the most critical factor always is the apparent merit of the proposed claim. The movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application.

After examining claimant’s papers the Court finds claimant has failed to satisfy the appearance of merit. The cross-motion is based only upon the affirmation of counsel. There is no affidavit from claimant or someone with knowledge of the facts of the case. Claimant’s cross-motion is also defective in that it fails to include a copy of the proposed claim as required by Court of Claims Act §10(6).

Based upon the foregoing, claimant’s cross-motion to file a late claim is denied and defendant’s motion to dismiss is granted. The Clerk of the Court is directed to close the file.


December 16, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on defendant’s motion: Notice of Motion dated May 10, 2005 and filed May 12, 2005; Affirmation in Support of Todd A. Schall, Esq. with annexed Exhibits A-B dated May 10, 2005 and filed May 12, 2005.
[2].The following papers have been read and considered on claimant’s motion: Notice of Cross Motion For a Late Claim dated June 20, 2005 and filed June 21, 2005; Affirmation in Opposition and Cross-Motion for a Late Claim of Daniel Weir, Esq. with annexed Exhibit 1 dated June 20, 2005 and filed June 21, 2005; Affirmation in Support and Opposition of Todd A. Schall, Esq. with annexed Exhibit A dated August 22, 2005 and filed August 24, 2005; Plaintiff’s (sic) Reply Affirmation for Cross Motion For a Late Claim of Daniel Weir, Esq. dated September 21, 2005 and filed September 21, 2005.
[3].This statement takes into account claimant’s description of the ninth or tenth tee, and that it could have happened on one of four of the 18 hole courses. This would assume that the reader of the claim knows that golf carts are not permitted on the Black Course (Somma Affidavit ¶4).