New York State Court of Claims

New York State Court of Claims

SCHEPART v. THE STATE OF NEW YORK, #2005-034-585, , Motion No. M-70493


Claimant filed a motion to renew pursuant to CPLR 2221 (e) seeking renewal of a motion to file and serve a late claim, which had previously been denied. Motion denied. Claimant failed to provide valid justification for failure to present purportedly "new " facts in original application. Moreover, new facts would not change the prior determination since claim is utterly lacking in merit.

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:
Defendant's attorney:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 25, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has sought renewal of an application for late claim relief. I will deny the motion.

The following papers have been submitted:

1. Notice of Motion, dated July 28, 2005, filed August 1, 2005;

2. Attorney's Affirmation in Support of Renewed Motion for Leave to Serve a Late Claim of Joseph G. Krenitsky, dated July 28, 2005, with attached exhibits;

3. Affidavit in Opposition of Gregory P. Miller, sworn to September 1, 2005, filed September 6, 2005;

4. Attorney's Reply Affirmation in Support of Renewed Motion for Leave to Serve a Late Claim of Joseph G. Krenitsky, dated September 23, 2005, with attached exhibits.

This motion to renew arises from an accident that allegedly occurred in the early evening – but daylight – hours of August 4, 2003, on a section of the riverwalk on Squaw Island, in the City of Buffalo. Claimant contends that he sustained serious injury as he rode his bicycle along the bike path and collided with a concrete bollard that had been installed on the pathway, apparently to keep motor vehicles from using the riverwalk. It is his contention that the State was negligent in the design, placement and maintenance of the bollard and adjoining pathway, including the failure to warn pathway users of the presence of the barrier.

On August 23, 2004, Mr. Schepart filed a motion for late-claim relief pursuant to Court of Claims Act § 10 (6). The State opposed that application, and by Decision and Order filed November 26, 2004 (Motion No. M-68986) I denied the requested relief. In so doing I explained that Claimant failed to satisfy any of the six factors among those to be considered in determining whether to grant discretionary relief under section 10 (6) (see 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]). Specifically, I found that there was no basis for finding merit since no evidence was presented other than third-party statements that Defendant owned the property, and conclusory allegations that Defendant negligently designed, placed or installed the bollards. So also, Claimant failed to submit any expert support for his negligent design theory of liability (see Nyberg v State of New York, 154 Misc 2d 199 [1992]). I also considered: that the more than one year delay was not legally excusable; that alternate remedies were being pursued; and that the State did not receive notice or an opportunity to timely investigate the incident, resulting in some prejudice to Defendant from the passage of time, notwithstanding that the bollard structure remained intact.

In now denying renewal of that application I have considered that pursuant to CPLR 2221 (e) (2) and (3), a motion to renew
"shall be based upon new facts not offered on the prior motion that would change the prior determination . . . and shall contain reasonable justification for the failure to present such facts on the prior motion."
Further, I am mindful that "[r]enewal is granted sparingly, and only in cases where there exists a valid excuse for failing to submit the additional facts on the original application; it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation." (Matter of Beiny v Wynyard, 132 AD2d 190, 210 [1987] lv dismissed 71 NY2d 994 [citations omitted]; see also Barrett v State of New York, 13 AD3d 775 [2004]).

In this motion Claimant has submitted an affidavit from an engineer familiar with bikeway design, as well as affidavits submitted by counsel and employees of the City of Buffalo ("City") and County of Erie ("County"), the latter having been tendered by the City and County in seeking summary judgment in Mr. Schepart's related Supreme Court action against those municipalities. Regarding the element of excuse, no valid justification has been presented for the failure to include the expert's affidavit as part of Claimant's original late claim application, which expressly reflected that discussions had occurred with an expert, albeit unnamed, in the preparation of those motion papers. The excuse offered for the prior absence of information from the municipal defendants in the related action is of limited persuasion, for two reasons. First, the earlier motion referenced that discussions had been held with counsel for at least one of the municipalities, and no explanation has been offered as to why at that time – or now – records regarding the State's engineer's plans, as noted in each municipality's motion papers, could not have been produced. Second, the absence of discovery in a related action has been held not to be a reasonable explanation for the failure to present that information in the original late claim application (see Matter of Barnes v State of New York, 159 AD2d 753, 754 [1990]).

Moreover, on close review the current submissions do not work to demonstrate arguable merit. The attorney affidavits from counsel for the City and County are nonevidentiary. The affidavit of Donald J. Poleto, an Assistant Engineer in the City's Public Works Department, asserts on knowledge that the County, rather than the State, installed the bollards in question, and at a point long after the initial design of the riverwalk by a firm evidently retained by the State (see Affidavit of Joseph G. Krenitsky, Exhibit F, ¶ ¶ 8, 11). Without further explanation those allegations would appear to negate any role of the State in the more recent decision by the County to install those barriers. I understand that Thomas Dearing, the Community Planning Coordinator in the County's Department of Environment and Planning, has denied any role by the County in the installation of the bollards, and instead contends that those barriers were part of the design plans and specifications prepared by an engineering/architectural firm retained by the DOT to design the area of the riverwalk in question (see Affidavit of Joseph G. Krenitsky, Exhibit D, ¶ ¶ 4-7). According to Mr. Dearing the State actually constructed the pathway, with the bollards "presumably" having been constructed and placed as designed (id. at ¶ 7), and Claimant's expert, Thomas W. Walsh, Jr., has challenged the design of the riverwalk with bollards on the pathway as negligent. However, neither Mr. Dearing nor Mr. Walsh has considered that in the area of municipal planning the limited immunity doctrine recognized in Weiss v Fote, 7 NY2d 579 (1960) would shield the State from liability for its design decisions, at least as measured under the general negligence considerations discussed by Mr. Walsh. That principle of qualified immunity is not limited to the highway design considerations addressed in Weiss v Fote, and clearly extends to other public improvement construction planning (see Joyce v State of New York, 152 AD2d 306 [1989], lv denied 76 NY2d 703 [1990] [qualified immunity held applicable to design plans for construction of Empire State Plaza in Albany]). For that reason Claimant's expert's failure to address the adequacy of the engineering/architectural study that led to the purported determination by the State to install the bollards, or establish that the design determinations lacked a reasonable basis, renders his assertions of merit based on negligent design fatally deficient.

More generally, even the new submissions fail to demonstrate, on knowledge or by documentary submission, that the State actually designed or installed the bollards in question. Notwithstanding references to the engineering plans in both the Poleto and Dearing affidavits, those plans were not incorporated into this application. As previously noted Mr. Poleto contends that the County installed the barriers in question, and Mr. Dearing's response is based in some measure upon belief, rather than direct knowledge. Conversely, those submissions support that the State does not own the riverwalk, and has no maintenance responsibilities.

In weighing the claim of a failure to warn I have further considered that Mr. Poleto has represented, on direct observation, that "[t]he bollard is not hidden or obstructed by any curve and is indeed visible from approximately 200 yards down the Riverwalk and was placed in an open and obvious location" (Affidavit of Joseph G. Krenitsky, Exhibit F, ¶ 9). Again on close review neither Claimant nor Mr. Walsh has provided a differing measure of visibility limits. I find the expert's generalized comments regarding visibility and the lack of warning signs highly speculative, and Mr. Schepart's statement that just prior to his accident he had been looking down at the ground to be troubling (see Affidavit of Joseph G. Krenitsky, Exhibit E, Examination under Oath of Brian Schepart, p. 11). Since no duty exists to warn of a condition that is readily observable through the reasonable use of one's senses (see Martinez v City of New York, 307 AD2d 989, 991 [2003]), the claimed breach of a duty to mark the bollards or place warning signs is likewise of dubious merit – again, assuming that the State installed the bollards.

Lastly, even if Claimant had established both excuse and arguable negligence as part of this motion, I would deny renewal. Once again, Court of Claims Act § 10 (6) identifies six factors among those to be considered in determining whether to grant relief. Claimant still has not offered an adequate excuse for his initial failure to take timely action to pursue his claim. His alternate remedies now extend to the County of Erie in addition to the City of Buffalo, although I understand that those suits may well be subject to renewed dismissal motions by the municipal defendants. So also, as previously noted the State has been deprived of prompt notice and opportunity to investigate. That delay itself, over one year, supports a finding of some prejudice (see Broncati v State of New York, 288 AD2d 172, 173 [2001]; Matter of Maurantonio v State of New York, 266 AD2d 290, 291 [1999]; Matter of Gallagher v State of New York, 236 AD2d 400 [1997]). Those factors continue to weigh against a grant of late claim relief, even on the present submissions.

Based upon the above it is,

Claimant's motion to renew is denied.

November 25, 2005
Buffalo, New York

Judge of the Court of Claims