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
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
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).
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 ), 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