New York State Court of Claims

New York State Court of Claims

SOZZI v. THE STATE OF NEW YORK, #2007-010-040, Claim No. NONE, Motion No. M-73752


Synopsis


Movant’s application for leave to serve and file a late claim is granted. Sufficient showing of an appearance of merit.

Case Information

UID:
2007-010-040
Claimant(s):
LEO A. SOZZI
Claimant short name:
SOZZI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-73752
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
JOEL L. FRIEDLANDER, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 18, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-10 were read and considered and oral argument was heard by the Court on movant’s application for leave to serve and file a late claim:
Notice of Motion, Movant’s Supporting Affidavit, Attorney’s Supporting Affirmation and Exhibits.........................................................................................1

Affirmation in Opposition and Exhibit....................................................................2

Reply Affirmation....................................................................................................3

Building Code of New York State Marked as Movant’s Exhibit 1 at Oral Argument..................................................................................................................4

Letter of Movant’s Attorney Dated October 4, 2007 Regarding Inspection of Staircase by Movant’s Proposed Expert, Steve Bernheim.......................................5

Letter of Steve Bernheim Dated November 2, 2007 Submitted on Behalf of Movant......................................................................................................................6

Letter of Movant’s Attorney Dated November 16, 2007, With Attached Photographs of Staircase Taken by Bernheim...............................................................................7

Defendant’s Letter of November 27, 2007...............................................................8

Letter of Movant’s Attorney Dated December 3, 2007.............................................9

New York State Building Code §1607.7 Submitted by Movant’s Attorney on December 13, 2007..................................................................................................10

The proposed claim alleges that on March 26, 2007, movant was employed by Nyack College School of Adult and Continuing Education and was teaching part-time at Taconic Correctional Facility. He was teaching his second semester of an algebra course. At approximately 6:00 p.m., movant was descending the stairs from the second floor to the ground floor with his right hand on the handrail. The handrail ended before the last step and therefore movant anticipated that he had reached the floor and he began to walk forward. Movant, however, had not reached the floor as there was another step beyond the end of the handrail. He stumbled on this last step and fell to the floor landing on his right knee and rolling onto his hip and right shoulder. Despite inquiry from New York State Correction Officer P. Frazier who witnessed movant’s fall, movant responded that he did not wish to complete an accident report at that time because he “had a class waiting” (Movant’s Affidavit, ¶ 4). He proceeded en route to get calculators for his class and then back upstairs to the classroom.

Thereafter, movant suffered pain in his right shoulder and knee and when the pain did not resolve itself despite his “home remedies” (id. at ¶ 5), he completed an accident report on May 9, 2007 (Ex. A). According to movant, “[b]y that time I had forgotten the exact date of my fall” (Movant’s Affidavit, ¶ 5) and the accident report specifies April 9, 2007 as the date of the accident. His memory lapse also made it difficult to ascertain the name of the officer who had witnessed this fall. Movant later learned the identity of Officer Frazier.

In opposition to movant’s application, defendant submits the memorandum of Frazier to his superior, Captain Giglio, dated May 17, 2007 which states:
“SUBJECT: trip & fall

[o]n March 26, 2007 while working in shool [sic] building, I witnessed a civilian volunteer trip coming down stairs [sic]. He fell to one knee. He got up right away on his own. I asked if he was o.k. He responded, I’m fine, I’m OK I think I just over stepped a stair. I suggested he go to medical which he declined. I asked if he wanted to make a report. He adamently [sic] declined stating I was an athlete. You get used to a spill every now & then. I’m fine.

A short while later I asked again while conducting a security Round, if he was o.k. Again he stated, I’m fine. End of Report.”
On May 21, 2007, movant went to his doctor for an examination and later underwent an MRI for his right shoulder and knee.

At oral argument, movant’s attorney submitted a copy of the New York State Building Code and defendant agreed to permit movant the opportunity to have an expert examine the staircase at the correctional facility. Movant’s purported expert, Steve Bernheim, visited the site and took photographs of the staircase. Movant then submitted a letter of Bernheim to movant’s attorney, dated November 2, 2007, where Bernheim indicates what he reviewed and his findings. Bernheim’s finding were:
“Upon my visit to the site I found, on the downward side of the staircase, that the banister and/or handrail on the right side did not go completely to the bottom landing; it stopped two steps below the landing; on the left side the handrail ended at the bottom step.


It is this writer’s opinion within a degree of professional certainty, based on the documents that I have read and my personal inspection of the facility, that this was a violation of the New York State Building Code §1003-3-3-11 entitled, Handrails.”

Bernheim’s letter did not include the photographs he had taken; rather, movant’s attorney submitted them under cover of his letter dated November 16, 2007.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

The Court has considered the above six factors. Movant’s purported excuse for his delay, i.e., that he “thought that the notice was being taken care of by the people handling the matter at the Taconic Correctional Facility” (Movant’s Affidavit, ¶ 11), is essentially ignorance of the law which is not a valid excuse (see Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413, 414 [ignorance of the law is not a valid excuse for delay]). Nor is movant’s purported excuse, i.e., that he did not timely file a claim because he had hoped that his condition would resolve itself via home remedies, valid without supporting medical data (see Quilliam v State of New York, 282 AD2d 590, 591 [reasonable excuse for delay not established absent medical proof of incapacity]). Nonetheless, this is but one factor to be considered.

The most significant factor is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Here, while the Court is mindful that merely submitting a photograph of the accident site is insufficient to establish merit of the proposed claim (see Matter of Gallagher v State of New York, 236 AD2d 400 [movant did not demonstrate the appearance of merit by “merely submitting a photograph” of the alleged accident site taken eight months post-accident]), the photographs submitted clearly show that the handrail did not extend beyond the bottom riser as mandated by New York State Building Code Section 1003.3.3.11.5 Handrail extensions, which provides that handrails shall extend horizontally one tread beyond the bottom riser. While movant submitted only a letter from his purported expert rather than a report detailing Bernheim’s qualifications as an expert, and the claimed violation cited, New York State Building Code Section 1003.3.3.11 Handrails, does not address movant’s allegations regarding the inadequacy of the length of the handrail; nonetheless the Court finds that movant has made a sufficient showing of an appearance of merit of his proposed claim. The Court’s finding as to the appearance of merit, however, is limited to the ruling on this application and a heavier burden of proof rests upon movant to prevail at trial, including the applicability of the pertinent sections of the New York State Building Code and whether or not defendant has indeed violated any of those sections.

Additionally, there was no dispute as to the condition of the staircase and defendant could not effectively argue undue prejudice in granting movant’s application. Upon weighing all the factors, this Court GRANTS movant’s application for leave to file a late claim (see Broncati v State of New York, 288 AD2d 172; Qing Liu v City Univ. of N.Y., 262 AD2d 473; Matter of Gallagher v State of New York, supra). Movant shall, within 45 days of receipt of this filed-stamped Decision and Order, serve and file a claim in the same form and substance as the proposed claim, and in accordance with the Court of Claims Act.

December 18, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims