New York State Court of Claims

New York State Court of Claims

BYRD v. STATE OF NEW YORK, #2007-037-018, Claim No. 112877, Motion No. M-72825


Synopsis


Movant’s motion for permission to file a late claim is denied.

Case Information

UID:
2007-037-018
Claimant(s):
BERNICE BYRD
Claimant short name:
BYRD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112877
Motion number(s):
M-72825
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
DeMarie & Schoenborn, P.C.By: Sean D. Schoenborn, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Wendy E. Morcio, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 16, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Movant’s motion to late file:

1. Notice of motion and supporting affidavit of Sean D. Schoenborn, Esq., sworn to

January 5, 2007, with annexed Exhibits A-D;

2. Opposing affidavit of Assistant Attorney General Wendy E. Morcio sworn to

February 13, 2007;

3. Reply affidavit of Sean D. Schoenborn, Esq., sworn to February 27, 2007, with

annexed Exhibit A;

4. Reply affidavit of Assistant Attorney General Wendy E. Morcio sworn to March 8,

2007.


Filed papers: Claim No. 112877 filed October 16, 2006.

On July 16, 2006, movant Bernice Byrd fell into an indentation in the pavement of a walkway located “at the Niagara Falls State Park visitors center near parking lot A at a walkway,” allegedly due to the carelessness and negligence of employees of the State of New York (see ¶¶ 3 and 4, notice of claim, annexed to Movant’s papers as Exhibit A).[1] Pursuant to Court of Claims Act § 10 (3), a negligence claim for personal injuries must be filed and served upon the Attorney General within ninety-days of accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v State of New York Thruway Authority, 75 NY2d 721 [1989]). Movant attempted to commence an action by filing a notice of claim on October 16, 2006,[2] within 90 days of accrual of Movant’s negligence cause of action. During the same time period, Movant attempted to serve the notice of claim on the Attorney General by certified mail, return receipt requested pursuant to § 11 (a) of the Court of Claims Act (see affidavit of service annexed to Movant’s papers as Exhibit C). Unfortunately, however, the green card that was affixed to the envelope (see Movant’s Exhibit D), while addressed to the Attorney General, listed the address as P.O. Box 7344, which is the address of the Court of Claims, not the Attorney General’s Office. This explains why the copy addressed to the Attorney General was delivered to the Court of Claims and signed for by an employee of the Court. Because it is undisputed that the Attorney General was not served with a copy of Movant’s notice of claim within 90 days of accrual of the negligence cause of action, Movant’s notice of claim filed as claim no. 112877 must be dismissed.

Shortly after discovering that the Attorney General had not been served, Movant brought this motion pursuant to § 10 (6) of the Court of Claims Act for leave to file and serve a late notice of claim.[3] Court of Claims Act § 10 (6) grants the court discretion to permit the late filing and service of a claim upon consideration of all relevant factors, including: (1) whether the delay in serving 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 substantial prejudice to the State resulted from the failure to timely serve upon the Attorney General a claim; and (6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

Movant alleges that the delay in serving the Attorney General was excusable because the United States Postal Service erroneously delivered the copy of the notice of claim to the Court of Claims and not to the Attorney General’s Office, that an employee of the Court of Claims erroneously signed for the notice of claim, and that had the Court rejected such service, Movant would have made arrangements for further service on the Attorney General. This argument overlooks the fact that the copy was misaddressed to the Court of Claims and not to the Attorney General’s Office. It was this law office failure, and not the Postal Service or the Court of Claims, which caused the erroneous service. Moreover, the copy was served on the Court of Claims on the very last day for filing and service. Therefore, even if the Court had rejected service, there would have been insufficient time for Movant to make other arrangements to accomplish service upon the Attorney General within the ninety-day statutory period. Because law office failure is not an adequate excuse for failure to timely serve a claim (see Sevillia v State of New York, 91 AD2d 792 [1982]; Almedia v State of New York, 70 AD2d 712 [1979]), this factor weighs against granting Movant’s motion.

The three factors of notice, opportunity to investigate, and prejudice are inextricably intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movant argues that a State police officer or other employee of the State was advised of the incident and took pictures and, therefore, presumably had notice and an opportunity to investigate. Movant further argues that the State will not be prejudiced as it received notice, by way of this motion, within six months of the incident. In order to establish notice there must be some evidence that notice was given “to the State body or officer responsible for the investigation and litigation of the claim” (Andriola v State of New York, 53 AD2d 966, 968 [1976]). Unfortunately, someone falling on a walkway in a State Park is not so unusual an occurrence as to immediately raise suspicion of a lawsuit; and there is no proof that the officer allegedly advised of the incident ever prepared a report, much less transmitted a report to supervisory personnel in charge of evaluating potential liability (see Allen v State of New York, Ct Cl, December 31, 2001, Patti, J., Claim No. 103513, Motion No. M-63467, Cross-Motion No. CM-63604, UID # 2001-013-032).[4] The Court, therefore, concludes that the State did not receive notice of the incident. It does not necessarily follow, however, that the State will be prejudiced simply because it did not have notice of the incident. While six months have passed, there is no evidence that the winter of 2006-2007 was so severe as to prevent a meaningful investigation of the site of the incident. Thus, while there is no proof that the State had notice, there is also no proof that the State will be severely prejudiced if Movant’s motion to late file is granted (see Allen, id.).

The next and often considered the most decisive factor is merit, as it would be futile to allow a meritless claim to proceed (see Dippolito v State of New York, 192 Misc 2d 395 [2002]; Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1 [1977]). Movant has the burden of proving that the proposed claim has the appearance of merit (Nyberg v State of New York, 154 Misc 2d 199 [1992]. The general rule is that a proposed claim will be considered as demonstrating the appearance of merit if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Dippolito, supra at 396-397; Matter of Santana, supra at 11). Defendant argues that the proposed claim lacks merit because it fails to comply with § 11 (b) of the Court of Claims Act as it does not specify the exact location where the incident occurred. Pursuant to § 11 (b) of the Court of Claims Act, a claim must “state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed.” The need to specify the exact location is even more important when the incident occurs in a public area like a park.
“An accident in a public area cannot be investigated without a specific location. Even when a location is specified, the condition must be described so an investigator has an indication of what to look for. An open, public area requires greater specificity because the defendant has no ability to ascertain what occurred by simply going to a designated place.”

(Cannon v State of New York, 163 Misc 2d 623, 627 [1994]).

Movant’s proposed claim fails to specify the exact location of the incident, fails to describe the “condition” of which the Defendant allegedly had notice and an opportunity to correct, and fails to set forth the total sum claimed. All of the requirements of § 11 (b) of the Court of Claims Act are substantive conditions on the State’s waiver of sovereign immunity, and the failure to comply with any of these requirements renders the claim jurisdictionally defective (see Kolnacki v State of New York, 8 NY3d 277, [March 22, 2007]). The State is not responsible for uncovering information that the Movant is required to allege under § 11 (b) of the Court of Claims Act (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]); and jurisdictional defects may not be cured by amendment (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 [1986]; Moran v State of New York, Ct Cl, April 11, 2006, Sise, P. J., Claim No. 107730, Motion Nos. M-70956, M-70788, UID # 2006-028-541). Thus, contrary to the argument of Movant’s counsel, the jurisdictional defects in the proposed claim may not be cured by undergoing discovery and subsequent amendment. If this were a motion to dismiss the proposed claim for failure to comply with § 11 (b) of the Court of Claims Act, such a motion would have to be granted. It is not, however, such a motion. In its present posture, the Court must decide whether to exercise its discretion and ameliorate the numerous pleading defects in the proposed claim, thereby conserving judicial resources by avoiding a subsequent motion for leave to file and serve a late claim, or to simply deny the motion. In this regard, the Court is somewhat troubled by the cavalier statement of Movant’s counsel that the proposed claim is meritorious simply because Movant was injured on a walkway which he believes, upon information and belief only, is owned and maintained by the State. The mere happening of an accident, however, does not render a defendant liable for negligence (see Tomassi v Town of Union, 46 NY2d 91 [1978]). Nor does Movant’s counsel explain why he failed to incorporate into the proposed claim the detail regarding the alleged indentation set forth in the undated and unverified statement of Movant annexed to his reply affidavit as Exhibit A and/or why he failed to annex to the proposed claim the photographs allegedly in Movant’s possession which might have helped to identify the exact location of the incident. The Court, therefore, concludes that Movant has failed to establish the appearance of merit and, thus, this factor weighs against Movant’s motion.

Movant fails to even address the final factor and so it is impossible for the Court to determine if Movant has any other remedies. This factor too weights against Movant’s motion.

Based on the foregoing, the Court concludes that the statutory factors on balance do not favor Movant and, therefore, the Court declines to exercise its discretion and grant Movant permission to late file and serve a claim. Accordingly, it is

ORDERED, that claim no. 112877 is dismissed and Movant’s motion no. M-72825 to late file and serve a claim is denied, without prejudice.



April 16, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Movant is confusing practice in State Supreme Court with Court of Claims practice. An action in the Court of Claims is commenced by the filing and service of a claim, not a notice of claim. Accordingly, the notice of claim attached to Movant’s papers as Exhibit A will be referred to henceforth as the proposed claim.
[2]. This is once again a misnomer as actions in the Court of Claims are commenced by the filing and service of a claim, not a notice of claim. The notice of claim filed as claim no. 112877 is identical to the proposed claim annexed to Movant’s motion papers as Exhibit A.
[3]. Court of Claims Act § 10 (6) only permits remedial relief to file and serve a late claim, not a notice of claim.
[4]. This and other unreported Court of Claims decisions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.