New York State Court of Claims

New York State Court of Claims

MORRIS v. THE CITY UNIVERSITY OF NEW YORK, #2006-016-075, Claim No. None, Motion No. M-72159


Synopsis


Late claim motion was granted.

Case Information

UID:
2006-016-075
Claimant(s):
ATOYA MORRIS
1 1.The caption has been amended to reflect, as set forth below, that the sole proper defendant is the City University of New York.
Claimant short name:
MORRIS
Footnote (claimant name) :

Defendant(s):
THE CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect, as set forth below, that the sole proper defendant is the City University of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-72159
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Todd A. Restivo, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 20, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Atoya Morris moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In her proposed claim, Ms. Morris alleges that on April 11, 2006, she tripped and fell on the sidewalk outside Boylan Hall of Brooklyn College, which is located on Bedford Avenue in Brooklyn. In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[2]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, claimant served a notice of claim upon the City University by certified mail, return receipt requested on June 30, 2006, within the statutory 90-day period of §10.3 of the Act (but failed to serve the Attorney General or file the claim with the Clerk of the Court). Defendant raises no argument with regard to these three factors, and I find that they have been met.

With regard to an alternate remedy, as set forth more fully below, claimant could sue the Dormitory Authority in Supreme Court.[3] With regard to excuse, claimant explains that her failure to serve the Attorney General or file the claim was “simply due to inadvertence.” Such is not a recognized excuse for the purposes of the act. See, e.g., Erca v State of New York, 51 AD2d 611, 378 NYS2d 328 (3d Dept 1976), affd, 42 NY2d 854, 397 NYS2d 631 (1977).

The remaining factor to be considered is whether the proposed claim appears meritorious. With regard to the happening of the accident itself, claimant has submitted sufficient documentation to support a finding of the appearance of merit. However, the issue of the potential liability of the State of New York and the City University of New York must be addressed. As it appears undisputed that claimant’s accident occurred on a New York City sidewalk, liability in this case is predicated solely upon §7-210 of the Administrative Code of the City of New York (effective September 14, 2003), which is entitled “Liability of real property owner for failure to maintain sidewalk in a reasonably safe condition.” Such section provides in relevant part that:
  1. It shall be the duty of the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition.
  1. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . shall be liable for any injury to property or personal injury . . . proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include . . . the negligent failure to remove snow [and] ice . . . from the sidewalk . . .
  1. Notwithstanding any other provision of law, the [City of New York] shall not be liable for any injury to property or personal injury . . . proximately caused by the failure to maintain sidewalks . . . in a reasonably safe condition . . .

Prior to the enactment of §7-210, there was no duty on the part of a landowner in New York City to maintain a municipal sidewalk abutting his or her property. See, e.g., Zektser v City of New York, 18 AD3d 869, 796 NYS2d 656, 657 (2d Dept 2005); Bechtos v City University of New York, Ct Cl, July 19, 2001. However, since this accident occurred following the enactment of §7-210, the property owner abutting the sidewalk on which claimant fell could be liable under such section. The indenture submitted by Morris (see exhibit 4 to claimant’s moving papers) indicates that the property in question was conveyed from the City of New York to the Dormitory Authority of the State of New York. The Dormitory Authority is an entity distinct from the State of New York over which this Court lacks jurisdiction, and which must be sued in Supreme Court. See, e.g., Frango v State of New York, Ct Cl, October 18, 2004 (unreported, M-68885, Scuccimarra, J., UID #2004-030-933). Accordingly, the State of New York is not a proper defendant in this case. As to the City University of New York, which occupies the premises in question, it is unclear from what has been submitted whether or not such entity could be responsible under §7-210 of the City’s Administrative Code. In any event, based on all of the submissions, I find that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim “must not be patently groundless, frivolous, or legally defective” and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, “there is reasonable cause to believe that a valid cause of action exists.”

In view of the foregoing, having reviewed the submissions[4], IT IS ORDERED that motion no. M-72159 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file her claim[5] in compliance with Court of Claims Act §11 and §11-a.


November 20, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [3]See Triani v State of New York, Ct Cl, August 30, 2006 (unreported, claim no. 112028, motion no. M-71583, Marin, J., UID #2006-016-055). Note that this and other decisions of the Court of Claims may be found on the court’s website: http://nyscourtofclaims.courts.state.ny.us.
  3. [4]The Court reviewed claimant’s notice of motion with affirmation in support and exhibits 1 through 5; defendant’s affirmation in opposition with exhibits A through C; and claimant’s reply affirmation with exhibit 1.
  4. [5]References to the State of New York as a defendant in claimant’s proposed claim shall be removed prior to service and filing.