New York State Court of Claims

New York State Court of Claims

WILKS v. THE STATE OF NEW YORK, #2006-036-574, Claim No. 111556, Motion No. M-72211


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:
By: Ellen Matowik Russell, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 29, 2006
New York City

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks an order vacating the court’s May 30, 2006 order of dismissal and restoring this case to the calendar; or, alternatively, granting him permission to file a late notice of claim [sic] and to join the City of New York as a necessary party.[1] The proposed notice of claim seeks damages on behalf of claimant and his wife for personal injuries claimant sustained when he slipped and fell off a loading dock while working for HELP, USA near Cottage 4, One Ward’s Island, Randall’s Island, New York on August 22, 2005. Claimant alleges that a dangerous, broken, cracked and defective condition at the loading dock caused him to fall, and that Manhattan State Hospital, the State and the City of New York own, manage, maintain and/or control the premises which claimant states are leased to his employer. The Court of Claims Act does not authorize the filing of what claimant calls a late “notice of claim.” (Loperfido v State of New York, fn 2, Claim No. 110163, Motion Nos. M-70229, CM-70433, dated April 13, 2006 (Sise, P.J.) While defendant agreed to construe the request as seeking permission to file a late claim -- which the court concurs is the proper relief -- defendant argues the motion should be denied because claimant lacks a reasonable excuse for the delay in filing the claim, defendant lacks notice of the essential facts of the claim, the claim lacks merit because the State does not own the subject premises, and because claimant may have an alternate remedy.

Court of Claims Act § 10(6) grants the court 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 to have merit, and whether claimant has an alternate remedy. No one factor is determinative, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen’s and Firemen’s Retirement System (55 NY2d 979 [1982]), and the court reviews all of the papers submitted on the motion in determining whether a claim has “apparent merit,” see Matter of Santana v New York State Thruway Authority (92 Misc 2d 1, 11 [Ct Cl 1977]).

Claimant’s attorney asks the court to excuse what appears to be claimant’s continuing inability to identify the owner of the premises. Within 90 days of the accident, claimant’s attorney filed with the Court of Claims a document dated October 11, 2005 denominated as a notice of claim against the State of New York. No service of the filed notice of claim was ever made on the State. Shortly after filing his claim against the State, claimant served a notice of claim on the City of New York.

After two different title searches showed the City to be the record owner of the premises, claimant’s attorney appeared at a conference before this court on February 15, 2006 to discuss the failure to serve the State. He advised the court and the State’s attorney that claimant would not oppose dismissal for lack of service because it appeared the State was not the owner of the premises. Thus, an order to show cause requiring claimant to submit proof of service was not answered and the claim against the State was dismissed by order dated May 30, 2006. In the interim, claimant filed, and then served, a summons and verified complaint on the City.

When the City served its verified answer dated June 8, 2006, it denied ownership of the premises. Claimant’s attorney then served the City with a notice to admit ownership but thereafter was told by an investigator for the City that the premises was controlled, maintained and operated by the State and by Manhattan State Hospital, and that these parties lease the premises to claimant’s employer, HELP, USA.

Claimant’s attorney concedes the question of actual title to the premises remains “obscure” and asks the court to take judicial notice of the unique history and nature of Ward’s Island. Based on the information he obtained from the City’s investigator, he asserts that Manhattan State Hospital and the State of New York continue to exercise “control” over much of the island, and, therefore, that these entities are “beyond a doubt proper defendant’s [sic] in this case.” Given claimant’s timely initial and persistent efforts to ascertain the real party in interest and to avoid frivolous litigation against the wrong defendant, the court finds the filing delay in this case is excusable.

The factors of notice and opportunity to investigate favor granting the relief, as well. Claimant’s attorney submits photographs of the specific area where the accident occurred, showing the premises at the time of the accident and more recently. The photographs show that the cracked area where claimant fell appears to be unchanged such that defendant’s ability to investigate the accident has not been impaired by the passage of time. Reliable sources of third-party information exist because claimant immediately notified his employer after the accident occurred and was taken to the emergency room by ambulance. The City defended the claim from the time it was filed, and the State had actual notice of the claim as evidenced by the its attendance at the February 15, 2006 conference and its order to show cause to dismiss the claim for lack of service. Based on the foregoing, the court finds an absence of prejudice to the State if the claim were to be filed at this time.

Defendant argues the claim lacks merit because the State does not own or maintain the premises and the court lacks jurisdiction over the entities which do. Defendant seeks to support this contention with an attorney affirmation which asserts in conclusory terms that certain buildings under the auspices of the former Manhattan Children’s Psychiatric Center encompass the location where the accident occurred and now are subleased by the Dormitory Authority of the State of New York to claimant’s employer (compare Sumowicz v State of New York, UID No. 2006-036-550, M-71844 [Ct Cl, Sept. 5, 2006]) (rejecting proposed claim as lacking in merit based on affidavit from official who researched property records and submitted copy of recorded conveyance showing defendant conveyed the premises before the incident giving rise to the claims). A copy of a purported sublease by the Dormitory Authority of the State of New York to claimant’s employer is similarly lacking. In describing the premises, the sublease references the covenants and conditions of a “lease governing the use of a portion of Ward’s Island dated July 29, 1914, made between the City of New York, as lessor, and the People of the State of New York, as lessee” [as extended]. Defendant has not explained how this lease to the State may fit in. In this connection, defendant also has not identified the owner or primary lessor who issued the sublease to the Dormitory Authority, nor has it presented evidence of the master lease which governs the Dormitory Authority sublease.

The Lexis statement that defendant submits to show the City’s ownership also is not persuasive. The statement begins “*** THIS DATA IS FOR INFORMATION PURPOSES ONLY, ***” and refers to a property record showing that “Parks and Recreation” owns Lot 10, Block 1819, parcel no. 1819-10 at Wards ISS, New York, New York 10035, along with a website map and description published by, or under the auspices of, the New York City Department of Parks & Recreation. The description shows that the New York State Department of Mental Hygiene took over certain buildings on Wards Island in 1899 and those buildings later became the Manhattan Psychiatric Center. Defendant does not explain how this description of apparent direct State involvement relates to the Dormitory Authority sublease which references the sublease premises as certain buildings of the “Manhattan Childrens Psychiatric Center.”

Collectively, the evidence demonstrates a “sharp but undeveloped factual issue” of ownership and/or control so that it cannot be conclusively shown the State is not a proper party at this time. (see Marcus v State of New York, l72 AD2d 724 [2nd Dept 1991]) (granting leave to file late claim under § 10 (6) where “sharp but undeveloped factual issue” existed regarding State’s alleged ownership of highway location where incident occurred.)

Accordingly, claimant’s motion for leave to file and serve a late claim against the State of New York is granted. Because the only proper defendant in the Court of Claims is the State itself, claimant’s proposed claim should be amended before filing to delete Manhattan State Hospital as a named defendant in the caption. Further, claimant’s motion seeking to join the City of New York as an additional necessary party in this action is denied because this court has no jurisdiction over that municipal entity.

Claimant may serve and file the proposed claim, as ordered to be modified herein, within forty days of the filing date of this decision and order in accordance with the applicable provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, including payment of the filing fee.

December 29, 2006
New York City, New York

Judge of the Court of Claims

[1].The Court considered the following papers on the motion: notice of motion to restore and seeking leave to file and serve a late notice of claim dated August 22, 2006 and claimant’s affirmation in support thereof with exhibits, and affirmation in opposition with exhibits dated October 4, 2006.