New York State Court of Claims

New York State Court of Claims

CLENDINEN v. THE STATE OF NEW YORK, #2006-031-006, Claim No. 110536, Motion Nos. M-70089, CM-70434


Synopsis


Claimant's notice of intention and amended notice of intention failed to adequately identify the place where Claimant's accident occurred. Defendant's cross-motion for dismissal of the claim is granted. Claimant's application, with conflicting accounts of where and what caused Claimant's fall, fails to offer any evidence of a defective condition or of notice of such condition to Defendant. Claimant's motion for permission to file a late claim is denied

Case Information

UID:
2006-031-006
Claimant(s):
ROY CLENDINEN
Claimant short name:
CLENDINEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110536
Motion number(s):
M-70089
Cross-motion number(s):
CM-70434
Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
GARY E. DIVIS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 1, 2006
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 11, were read on motion by Claimant to strike certain affirmative defenses asserted by Defendant, or alternatively for late claim relief, and on cross-motion by Defendant for dismissal of the claim.
1. Claimant's Notice of Motion (M-70089), filed May 2, 2005;
2. Affirmation of Gary E. Divis, Esq., dated April 30, 2005, with attached exhibit;
3. Affidavit of Roy Clendinen, sworn to April 15, 2005;
4. Claimant's memorandum of law, dated April 30, 2005;
5. Defendant's Notice of Cross Motion (CM-70434), filed July 19, 2005;
6. Affirmation of James L. Gelormini, Esq., dated July 15, 2005, with attached exhibits;
7. Affidavit of Michael R. Sears, sworn to July 14, 2005, with attached exhibits;
8. Defendant's memorandum of law, dated July 15, 2005, with attached exhibit;
9. Reply Affidavit of Roy Clendinen, sworn to August 30, 2005, with attached exhibits;
10. Defendant's Reply Memorandum of Law, dated August 17, 2005, with attached exhibits;
11. Correspondence of Gary E. Divis, Esq., dated September 6, 2005. BACKGROUND

In his underlying claim, filed on February 22, 2005, Claimant, Roy Clendinen, alleges that he tripped and fell on a paved walkway at Wyoming Correctional Facility ("Wyoming") on September 5, 2004. According to Claimant, he suffered "serious injuries to his neck, back, left hand, right knee, and thigh" (Claim, par. 3). Mr. Clendinen alleges that Defendant negligently failed to keep the walkway free from hazardous defects and seeks $1,000,000.00 for his injuries.

On November 15, 2004, prior to service of the claim, Mr. Clendinen (then acting pro se) served a notice of intention to file a claim on Defendant. That notice of intention indicated that he was injured at Wyoming and identified the place where the claim accrued as "along the shoulder of the East Compound blacktop ajacent [sic] to the East Compound Yard." Mr. Clendinen (still pro se) then served an amended notice of intention to file a claim on December 1, 2004. In this document, Claimant added that the dangerous condition was the result of Defendant's "laying new blacktop over an old layer." This allegation regarding multiple layers is repeated in Claimant's April 15, 2005 Affidavit, as well as an allegation that he fell on the shoulder of the walkway.

According to the documents and photographs submitted by Defendant, the walkway on which Claimant fell is a paved area approximately 22 feet in width. One-third of this paved area is designated as a walkway and the remaining two-thirds is for vehicular traffic. A painted white line separates the pavement into the driving and walking areas. The claim identifies the location of the alleged hazard, not on the shoulder of the walkway, but as "the black top walkway . . . at east compound, about four and one-half to five feet from the gate to the yard, adjacent to a vehicular road way . . ." (Claim, par.2). As to the nature of the alleged hazard, the claim provides: "The walkway was uneven, cracked, and chipped away; the paving material was heaving up; the top layer of paving material was broken off at the edges; there was a drop of about six inches from the . . . walkway to the adjacent road way . . . " (Claim, par. 3).

One would assume from the claim that the Claimant fell near the middle third of the paved area where the white line separates the walkway from the roadway. However, in his April 15, 2005 Affidavit, Claimant indicates that he fell on the shoulder of the walkway. Claimant also indicates the location of his fall in a photograph attached to his August 30, 2005 Affidavit. The photograph was originally contained in the Affidavit of Michael R. Sears (submitted with Defendant's moving papers), as the first page of Exhibit 1. Claimant has placed an "X" on the photograph to indicate the approximate location of his fall. According to Claimant's notation on the photograph, he fell on the side of the walkway that is furthest from the roadway, in a dirt and gravel covered shoulder area that separates the walkway from the compound grass.

Defendant's Amended Answer, filed on March 28, 2005, asserts as its sixth affirmative defense that both the notice of intention and amended notice of intention fail to adequately identify the location of the incident and are therefore jurisdictionally defective. Defendant's seventh affirmative defense asserts that, because the notice of intention and amended notice of intention were defective, the claim is untimely.

In response to these defenses, Claimant has filed motion M-70089 requesting that the Court strike the Amended Answer's sixth and seventh affirmative defenses. Alternatively, Claimant requests permission to file a late claim pursuant to § 10(6) of the Court of Claims Act ("CCA"). Defendant has filed a cross-motion seeking dismissal of the claim based upon the alleged defects in the notice of intention and amended notice of intention and Claimant's resulting failure to file and serve his claim or serve a proper notice of intention within 90 days of accrual of Claimant's cause of action.
CLAIMANT'S NOTICE AND AMENDED NOTICE OF INTENTION
The Affidavit of Michael R. Sears, the Plant Superintendent at Wyoming, indicates that the paved area in question is 1,150 feet in length and has shoulders on each side. Therefore, the identification of the location of the accident in Claimant's notice and amended notice of intention to file a claim could have meant anywhere in the approximately 2,300 feet of shoulder area along the pathway. Defendant asserts the notice and amended notice of intention fail to set forth sufficient information to permit Defendant to conduct a meaningful investigation. Defendant argues that Claimant's failure to more specifically identify the location of his fall renders the notice and amended notice of intention defective.

The purpose of a notice of intention is to give the State prompt notice of an occurrence and an opportunity to investigate the facts to determine potential liability (Heisler v State of New York, 78 AD2d 767) and, consequently, it must identify the location of the accident sufficiently to enable the Defendant to conduct a meaningful investigation (Grande v State of New York, 160 Misc 2d 383).

Here, Claimant's vague indication that he fell on the shoulder of an 1,150 foot walkway was clearly insufficient to permit the State to conduct any sort of meaningful investigation. For this reason, both the notice and amended notice of intention were defective (see e.g. Sheils v State of New York, 249 AD2d 459 [indication that an accident occurred on a driveway "located somewhere on a property with a 1,000-foot frontage on the roadway" was insufficient]; Sega v State of New York, 246 AD2d 753 [the identification of the place where the incident occurred as "Route 7 West of the Village of Richmondville, in the Town of Richmondville, County of Schoharie" was not adequate]).

As each notice of intention was defective and no other document was filed within 90 days of accrual of Claimant's cause of action, I am constrained to grant Defendant's cross-motion for dismissal of the claim. With regard to Claimant's motion, obviously I have found merit in the sixth and seventh affirmative defenses asserted in Defendant's Amended Answer. Accordingly, that portion of Claimant's motion requesting that these affirmative defenses be stricken is denied as moot.
CLAIMANT'S APPLICATION FOR LATE CLAIM RELIEF
Claimant has requested that he be permitted to file a late claim. Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

With regard to his excuse for the delay, Claimant alleges that he did attempt to proceed expeditiously with the claim by serving a timely notice of intention to file a claim and an amended notice of intention to file a claim. As explained above, however, these documents were defective and did not extend Claimant's time to file and serve a claim. Claimant's counsel also points out that he wrote to the Superintendent of Wyoming on December 8, 2004 in an attempt to get photographs of the accident scene. Claimant implies that part of his delay was caused by the Superintendent's slow response (January 14, 2005) to this letter. I note, however, that the 90 days within which to commence an action had already expired when the December 8, 2004 letter to the Superintendent was sent. Claimant also points out that he made a FOIL request for documents relating to the incident on December 6, 2004. Neither of these actions, however, either extend or justify a failure to meet the filing requirements of the CCA. Accordingly, I find that this factor weighs in Defendant's favor. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing a § 10(6) application, and does not necessarily preclude the relief sought here (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, supra).

It appears that, given the nature of the alleged claim and the fact that Claimant is an inmate, Claimant does not have any other adequate avenue of redress for his injuries arising from the incident. This factor, therefore, weighs in Claimant's favor.

The next three factors covering notice, opportunity to investigate and prejudice, are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). The Claimant reported his injuries two days after the incident, filed a grievance and served a notice of intention and an amended notice of intention within 90 days of accrual of his cause of action. According to Defendant (although Claimant maintains otherwise), the paved area has not been altered in any way since the accident and is today in substantially the same condition as it was on the day that Claimant fell. I find that these three factors, therefore, weigh in Claimant's favor.

Of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant. It would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Defendant asserts that the claim, like the notice and amended notice of intention, fails to adequately identify where the incident occurred or what the alleged defective condition was and that, therefore, the application should be denied. With regard to the location of the incident, however, taking all Claimant's submissions into account, I find that any confusion as to the location of Claimant's fall was dispelled by Claimant's attachment of the photograph to his August 30, 2005 Affidavit. As indicated above, Claimant has marked this photograph with an "X" to indicate the location of his fall.

The question of what caused Claimant's fall is more problematic. Claimant alleged in his notice and amended notice of intention that he "lost his footing along the shoulder" of the walkway. In his claim, Mr. Clendinen alleges both that the paving material was "heaving up" and that there was a "drop of about six inches" between the walkway and the roadway. The claim alleges that he fell, but does not specify whether he did so because he stepped in the six-inch drop or because he tripped on the material that was heaving up. Moreover, though he alleges in a conclusory manner that Defendant "having notice of the disrepair of the walkway; failed to repair the same" (Claim, par. 4), he fails to identify the specific hazard that caused his fall or how or when Defendant was placed on notice that such a defect existed.

On the issue of notice, Mr. Sears' Affidavit at paragraph 19 indicates that no other incidents or injuries relating to the condition of the walkway have been reported. The 13 photographs of the walkway attached to the Affidavit of Michael R. Sears depict the area where Claimant alleges he fell from many different vantage points. Although perhaps not determinative of the issue, they do support Mr. Sears' contentions, as no obvious defects in the pavement are visible. The photographs do not depict a walkway in disrepair. Although there are certainly small cracks in the pavement, there is no sign of uneven or heaving pavement, or of a six-inch drop. Nothing in the photographs indicate the existence of a hazard that is open and apparent or from which one would deduce that Defendant must have had constructive notice of a hazard.

Assuming, arguendo, that a hazardous condition did exist on the walkway, Claimant must still demonstrate that Defendant had notice of the allegedly defective condition if his claim is to be deemed meritorious. The landowner either must have created the dangerous or defective condition or must otherwise have actual or constructive notice of it (Batiancela v Staten Island Mall, 189 AD2d 743; Browne v Big V Supermarkets, 188 AD2d 798). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it"; a general awareness that a dangerous condition may exist is legally insufficient to create constructive notice (Gordon v American Museum of Natural History, 67 NY2d 836, 837). Claimant has made no showing that Defendant had notice of the alleged defective condition. Without notice of the alleged defect, either actual or constructive, Defendant can not be cast in damages (Bethel v New York City Transit Auth., 92 NY2d 348; Babbie v Boisvert, 281 AD2d 845). I find that Claimant has failed to establish a prima facie cause of action for negligence. Accordingly, Claimant has failed to demonstrate that his proposed claim is meritorious.

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), the Court finds that they weigh in Defendant's favor. Based upon the foregoing, it is hereby

ORDERED, that Claimant's motion (M-70089) to strike affirmative defenses, or alternatively for late claim relief, is denied. Defendant's cross-motion (CM-70434) for dismissal of the claim is granted.

February 1, 2006
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims