New York State Court of Claims

New York State Court of Claims

SUMOWICZ v. THE STATE OF NEW YORK, #2006-036-550, Claim No. None, Motion No. M-71844


Late filing motion denied . . . State does not own the accident site.

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:
BORNSTEIN & EMANUEL, P.C.By: Mark J. DeCicco, Esq
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Ellen Matowik-Russell, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim arising out of a June 7, 2005 incident in which she tripped and fell, allegedly the result of a pavement defect located in front of 236-02 Hillside Avenue in Queens. Defendant opposes the motion.[1]

After the accident, claimant served a notice of claim, pursuant to General Municipal Law § 50-e, on the City of New York. Claimant’s counsel advises that subsequent investigation revealed that 236-02 Hillside Avenue was “State land.” The source of this conclusion was a search of City property records which described the subject parcel as “State land under water,” and an alleged conversation with an unnamed member of the board of the neighborhood association that operates the Little League fields located on the premises, during which the board member said the fields were owned by the State.

Court of Claims Act § 10(6) grants the court the discretion to allow the filing of a late claim, upon consideration of certain factors, including whether claimant’s delay in proceeding against the State is excusable, whether the State had timely notice of and the opportunity to investigate the pertinent allegations, whether the State would suffer substantial prejudice from an order allowing late filing, whether the proposed claim appears meritorious and whether claimant has an alternate remedy.

The court finds that claimant’s delay was not excusable. Counsel offers no reason why he could not have completed his inquiry into the ownership of the premises within the statutory 90-day period for filing a claim (Court of Claims Act § 10[3]).

The court further finds that the State, which apparently had no knowledge of the incident until service of these motion papers more than one year later, did not have the timely opportunity to investigate.

The motion papers do not contain an affidavit from the claimant describing what happened on the date in question or why she attributes the incident to negligent maintenance of the sidewalk. Instead, claimant attaches eight photographs of the location, including close-ups of the sidewalk, and her attorney’s conclusions that the photographs depict an “unsafe, hazardous, dangerous, defective and/or trap-like condition of the flagstone existing upon the subject sidewalk” (Affidavit in Support, ¶ 6). The court has viewed the photographs and cannot arrive at that conclusion. They appear to depict a normal sidewalk or perhaps, at most, a trivial non-actionable condition.

Not knowing what claimant alleges was wrong, the court cannot determine whether the passage of nine months following the expiration of the statutory 90-day period would impair an investigation.

Most significantly, arguing that claimant has failed to demonstrate apparent merit to the proposed claim (see, Matter of Santata v New York State Thruway Auth., 92 Misc 2d 1 [1977]), defendant submits an affidavit from Ellen Manning, an official with the State’s Office of General Services, who advises that she has searched the relevant land records and ascertained that the subject premises were conveyed by the State of New York to the Hollis-Bellaire-Queens Village-Bellerose Athletic Association, Inc. on October 2, 1985, said conveyance (a copy of which was attached) having been recorded with the Department of State on October 4, 1985. The conveyance was for the purpose of operating a Little League facility for the youth of Queens County, and it provides that if the property ceases to be so utilized, title would revert to the State, upon application to the Supreme Court. It does not appear that any such reverter has occurred; in fact, it appears from the photographic evidence that the premises are still used as Little League fields.

Claimant did not respond to defendant’s contention that it no longer owns the subject premises, which thus stands unrefuted.

As defendant notes, it is not proper to grant an application to late file where it appears that the proposed claim is patently defective or where there is a complete defense (Manner of Santana, supra, Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). Since the papers before the court do not raise any issue as to ownership (compare Marcus v State of New York, 172 AD2d 724 [2d Dept 1991]), the court agrees that claimant has failed to demonstrate apparent merit within the meaning of § 10(6).

Finally, and without addressing the relative responsibility of the property owner and The City of New York, the court notes that claimant is pursuing her alternate remedy in the form of an action against the City.

Based on the foregoing, it would be an improvident exercise of discretion to allow late filing under these circumstances, and the motion is therefore denied.

September 5, 2006
New York, New York

Judge of the Court of Claims

[1].The court considered the Notice of Motion, Affidavit and Exhibits and the Affirmation in Opposition and Exhibits.