New York State Court of Claims

New York State Court of Claims

BURNS v. THE STATE OF NEW YORK, #2007-031-039, Claim No. 111597, Motion Nos. M-73080, M-73158


Synopsis


Claimants’ notice of intention failed to adequately identify the place where the claim arose as required by Court of Claims Act § 11(b). The defective notice of intention did not extend the time for filing and service of the claim. Accordingly, the claim filed more than 90 days after accrual is untimely and must be dismissed. Claimants’ application for late claim relief is denied as among other things, Claimants have failed to demonstrate the merit of their proposed claim

Case Information

UID:
2007-031-039
Claimant(s):
DWAYNE J. and JOSEPHINE BURNS
Claimant short name:
BURNS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111597
Motion number(s):
M-73080, M-73158
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
CHRISTOPHER S. CIACCIO, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 28, 2007
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers numbered 1 to 6 were read on motion by Claimants for an order striking Defendant’s sixth affirmative defense, or alternatively, for permission to file a late claim pursuant to Court of Claims Act § 10(6), and on motion by Defendant for dismissal of the claim:
  1. Claimants’ Notice of Motion (M-73080), filed March 21, 2007;
2) Affirmation of Christopher S. Ciaccio, Esq., affirmed March 13, 2007, with attached exhibits;
3) Affidavit of Kevin Williams, sworn to December 3, 2006;
4) Defendant’s Notice of Motion (M-73158), filed April 6, 2007;
5) Affirmation of James L. Gelormini, Esq., dated April 4, 2007, with attached exhibits;
6) Defendant’s Memorandum of Law, dated April 5, 2007.[1] I have before me two motions. With motion M-73080, Claimants Dwayne J. and Josephine Burns request an order striking Defendant’s sixth affirmative defense, or alternatively, permission to file a late claim pursuant to Court of Claims Act (“CCA”) § 10(6). Defendant has also filed a motion (M-73158) seeking dismissal of the claim as untimely. I will address Defendant’s motion first.
DEFENDANT’S MOTION TO DISMISS (M-73158)
In their claim, filed on November 7, 2005, Claimants allege that Dwayne Burns was injured in an automobile accident in the Town of Gates on April 5, 2004. According to the claim, Defendant negligently permitted a portion of Brooks Avenue in the Town of Gates to become ice-covered and dangerous. Allegedly, Defendant’s negligence caused the driver of another vehicle, Kathryn Zambito, to lose control of her car, enter Claimant’s lane of travel and strike Claimant’s vehicle. As the claim was served more than 90 days after the occurrence, it is timely only if Claimants served a valid notice of intention. Claimants served their notice of intention to file a claim on June 7, 2004. In that document, at paragraph 4, Claimants describe the location of the accident as “Brooks Avenue, west of the railroad overpass in the Town of Gates, County of Monroe, State of New York . . . .”

Defendant argues that the notice of intention is defective because Claimants’ description of the location of the accident was insufficient to enable them to adequately investigate the incident. Defendant points out that the notice of intention does not indicate which overpass (although in their motion papers Claimants assert that there is only one) or how far west of that overpass the accident occurred. Accordingly, Defendant argues that, as the notice of intention did not extend the time for service and filing of the claim, the claim must be dismissed as untimely.

Whether a claim or notice of intention contains sufficient information to comply with CCA § 11(b) has been the subject of frequent motion practice. A claim is required to set forth the time when and place where it arose, the nature of the claim, the items of damage or injuries claimed to have been sustained and the total sum claimed. A notice of intention is required to contain the same information, except for the items of damage and the sum claimed (the ad damnum). These are substantive jurisdictional requirements (Lepkowski v State of New York, 1 NY3d 201) and failure to satisfy this requirement will result in dismissal (Cobin v State of New York, 234 AD2d 498).

With regard to the adequacy of the allegations, the language of the claim or notice of intention must be sufficiently specific to enable a defendant to conduct an investigation and ascertain its potential liability (Heisler v State of New York, 78 AD2d 767). "It is axiomatic that the sufficiency of a claim rests solely upon the assertions contained therein, and defendant is not required to go beyond the claim in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act § 11 . . . (citation omitted)" (Lepkowski v State of New York, 302 AD2d 765, 766, affd 1 NY3d 201). Further, the lack of prejudice is not a factor with regard to determining jurisdictional questions in the Court of Claims (Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

There are several clear precedents which must be considered in determining whether or not Claimants’ notice of intention adequately set forth the location of the incident. In Schneider v State of New York (234 AD2d 357), dismissal of the claim on § 11 grounds was upheld where it was asserted that the claimant had fallen in the picnic area adjacent to the parking area at Heckscher State Park. On its motion to dismiss, the defendant submitted a map showing a number of picnic areas near a number of parking areas scattered throughout the park. The Court, therefore, determined that the claim was not sufficiently specific.

In Heisler v State of New York (78 AD2d 767, supra), the Appellate Division, Fourth Department, provided guidance on this issue stating: "[w]hat is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State."

In Cobin v State of New York (234 AD2d 498, 499), the Appellate Division, Second Department, affirmed the dismissal of the claim, finding that identifying the site of the accident as “on the boardwalk at Jones Beach, County of Nassau, State of New York, in the East Quarter Circle, or its vicinity” was insufficient to adequately identify the location of the incident. Similarly in Sheils v State of New York (249 AD2d 459 - 460), the Appellate Division, Second Department, reviewed a claim which asserted that the location of the incident was on “Route 112/25A in front of the Infant Jesus Church, in Port Jefferson” and attached photographs of the scene showing “a driveway located somewhere on a property with a 1,000-foot frontage on the roadway where the injured claimant fell.” The Court determined that the claim gave insufficient notice of the location to defendant and affirmed the lower Court’s dismissal of the claim.

In Grande v State of New York (160 Misc 2d 383), the Court of Claims (Judge Silverman) found that identifying the highway and the municipality in which the accident occurred was insufficient. Also in this case, the Claimants’ filing of a form with the Department of Transportation indicating the exact location of the accident was not sufficient to satisfy the notice requirement because the State was not required to go beyond the claim or notice of intention in order to investigate the occurrence or to ascertain information which should have been provided in the claim.

In Sega v State of New York (246 AD2d 753, 755), the Third Department cited Cannon v State of New York (163 Misc 2d 623, 626) for the proposition that “every element in a notice of intention need not be set forth with formalistic rigidity and it should not be scrutinized as strictly as a pleading.” Yet the Court, nonetheless, affirmed dismissal of the claim which identified the location of the accident as occurring “on Route 7 West of the Village of Richmondville, in the Town of Richmondville, County of Schoharie.” The Court found that the claim’s identification of the location of the accident was insufficient in light of the fact that the accident occurred on an open public highway.

I find that here, as in Sega, Grande and Sheils, Claimants have done little more than identify the highway and municipality in which the accident occurred. I am, therefore, constrained by existing precedent and find that Claimants have failed to comply with CCA § 11(b). Accordingly, I must grant Defendant’s motion and dismiss the claim.
CLAIMANTS’ LATE CLAIM APPLICATION
With regard to Claimants’ request for late claim relief, 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 the excuse for delay, Defendant correctly asserts that Claimants’ excuse is essentially based upon ignorance of the law and is therefore not legally recognized (Matter of E. K. v State of New York, 235 AD2d 540; La Bar Truck Rental v State of New York, 52 AD2d 1007). I find that this factor weighs in Defendant’s favor.

Claimants clearly have an alternative remedy against Kathryn Zambito, the driver of the vehicle that collided with Claimant’s vehicle. In fact, page 10 of the police report attached as Exhibit I to Claimants’ moving papers indicates that a bald tire on the Zambito vehicle was a likely causative factor in the accident. I find that this factor, too, weighs in Defendant’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). Although Defendant correctly cites Allen v State of New York (Ct Cl, December 31, 2001 [Claim No. 103513, Motion Nos. M-63467 and CM-63604], Patti, J., UID #2001-013-032) for the proposition that a defective notice of intention did not count as notice for purposes of evaluating a late claim application, I find that the Allen case is distinguishable. In Allen, not only did the claim fail to adequately identify the location of the accident, but it failed to indicate how the defendant was negligent. Here, although notice of the specific location was lacking, Defendant was aware that they might be sued for failure to properly salt, or take other steps to remove ice from the roadway on Brooks Avenue.

The jurisdictional notice requirements of CCA § 11(b) are not the same as the notice requirements of CCA § 10(6). While the pleading requirements of § 11(b) do not require Defendant to look any farther than the document itself, the notice requirements of § 10(6) require somewhat less. As Defendant, citing the Allen case, indicated in its Memorandum of Law (p. 14), the notice needed is “whether the State was aware that it had a potential lawsuit on its hands and whether it was placed in a position to investigate that possibility.” Although Defendant is correct in its argument that an invalid notice of intention may not give § 10(6) notice and that a police report may not give adequate § 10(6) notice, I find that, in this situation, they do. The notice of intention in this instance, as opposed to that in Allen, did give notice to Defendant of the nature of the claim against it. This fact, coupled with the fact that the Town of Gates, Defendant’s agent, conducted an investigation of the accident, which involved the death of a passenger in the Zambito vehicle, leads me to the conclusion that Defendant was aware of a potential lawsuit and was in a position to investigate that matter.

I find that Defendant did have notice, within 90 days of the incident, that litigation might ensue and why. Further, it appears that an adequate investigation was, in fact, conducted. There is no indication from the record that Defendant would suffer prejudice, substantial or otherwise, if Claimants’ application were to be granted. Accordingly, I find that each of these three factors weighs in Claimants’ favor.

Of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant, as 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). Claimants assert that they have demonstrated the merit of their proposed claim because the police accident report indicates that the roadway where the accident occurred “was covered with ice and appeared unsalted” (Claimants’ Exhibit I, pg. 3). Claimants’ expert, meteorologist Kevin Williams, opines in his affidavit that the weather for a period of several hours before the accident indicated that the conditions were favorable for the formation of ice. Mr. Williams also opines that there was sufficient notice from weather reports of the need for salt or de-icing agents to be applied to the roadways in the vicinity of the accident. Finally, he opines that the roadway where the accident occurred had not been treated with salt or other de-icing agents for a period of approximately four to five hours prior to the accident.

Defendant opposes the application, arguing that Claimants cannot demonstrate merit because: 1) Defendant did not have notice of a defective or dangerous condition prior to Claimant’s accident; 2) there was a storm in progress which insulates Defendant from liability; and 3) the steps taken by Defendant to control ice near the accident scene were reasonable.

Basically, Claimants’ theory of liability is that the Town of Gates, Defendant’s agent, failed to apply salt or de-icing agents to the roadway despite adequate notice that conditions were favorable for the formation of ice. Mr. Williams’ opinion in this regard is troubling, however, for several reasons. First, although Mr. Williams is well known in this area and I have no reason to doubt his expertise as a meteorologist, there is no basis given for Mr. Williams’ opinion that the roadway had not been treated with salt or other de-icing agents for several hours prior to the accident. This opinion ignores the fact that the Town of Gates records indicate that the route which included the accident location had been salted. Moreover, Mr. Richard Clark, the driver of the salt truck, testified that he salted this area of Brooks Avenue, not once, but twice, 60 to 90 minutes prior to the accident. We further have the testimony from Sergeant Salvatore Gerbino, who drove through the accident site approximately 10 minutes before the accident. He stated that the road was not ice-covered at that time but that, when he returned 10 or 15 minutes later, the road was ice-covered. According to Sergeant Gerbino, the weather conditions changed precipitously during that short time, with cold temperatures and very heavy wind.

Accordingly, I find that I must agree with Defendant that Claimants’ expert has failed to demonstrate that he is competent to render an opinion regarding whether and when salt or de-icing agents were applied to the roadway. Mr. Williams’ opinion, in this regard, is speculative and unsupported by facts or data, and conflicts with the direct testimony of Mr. Clark and Sergeant Gerbino. I, therefore, find his affidavit to be without probative force on this issue (Schuster v Dukarm, 38 AD3d 1358; Amatulli v Delhi Constr. Corp., 77 NY2d 525; Geddes v Crown Equip. Corp., 273 AD2d 904).

Moreover, the mere fact that ice “is present on a roadway at the time of an automobile accident does not, by itself, establish negligence on the part of the State” (Timcoe v State of New York, 267 AD2d 375). Given the testimony of Mr. Clark (that he salted the roadway in question twice in the 60 - 90 minutes prior to the accident) and that of Sergeant Gerbino (that the roadway was not icy 10 minutes prior to the accident), I find that Claimants have failed to establish that Defendant had notice of a dangerous condition (Timcoe v State of New York, supra; Valentino v State of New York, 62 AD2d 1086). There is no allegation that Defendant had actual notice of the alleged dangerous condition. “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” (Gordon v American Museum of Natural History, 67 NY2d 836, 837). I am compelled to agree with Defendant that it had no notice of a defective or dangerous condition prior to the accident. Accordingly, I find that Claimants have failed to demonstrate that the proposed claim is meritorious.

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

ORDERED, that Defendant’s motion (M-73158) is granted and the claim is dismissed in its entirety, and it is further

ORDERED, that Claimants’ motion (M-73080) to strike Defendant’s sixth affirmative defense or, alternatively, for permission to file a late claim, is denied.

August 28, 2007
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims



[1].The Court notes that the Memorandum of Law is dated April 5, 2007 but that the affirmation of service is dated April 4, 2007.