New York State Court of Claims

New York State Court of Claims

BAROTTI v. STATE OF NEW YORK, #2007-042-515, Claim No. NONE, Motion No. M-73090


Synopsis


Claimant has made this motion for permission to late file a claim pursuant to Court of Claims Act Section 10 (6). This matter is an alleged slip and fall on wet stairs which occurred at Morrisville State College property. The Court found that claimant has met the statutory criteria for the late filing of a claim and, therefore, claimant’s motion is granted.


Case Information

UID:
2007-042-515
Claimant(s):
ANTHONY J. BAROTTI, III
Claimant short name:
BAROTTI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-73090
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
KENNY & KENNY, PLLCBy: ERIN K. SKUCE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 29, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings this motion before the Court for permission to late file a claim pursuant to Court of Claims Act Section 10 (6). The Court has considered the following papers:
1. Notice of Motion, filed March 26, 2007
2. Affidavit of Erin K. Skuce, Esq., sworn to March 22, 2007
3. Affidavit of Anthony J. Barotti, III, sworn to March 22, 2007
4. Exhibits A - C, annexed to the moving papers
5. Opposition affirmation of Joel L. Marmelstein, Esq., dated April 23, 2007
6. Opposition affidavit of Mark Procopio, sworn to April 23, 2007
7. Opposition affidavit of Richard Reeves, sworn to April 23, 2007
8. Opposition affidavit of Garth Westfall, sworn to April 23, 2007
9. Letter of Erin K. Skuce, Esq., dated May 10, 2007 and enclosure (signed original proposed claim, verified May 10, 2007)

________________________________________

This matter comes before the court on a motion by claimant for permission to late file a claim against the State of New York, pursuant to Court of Claims Act § 10 (6). Claimant, a student at defendant’s Morrisville State College, alleges that he sustained serious injuries when, on October 16, 2006, he slipped and fell on wet stairs at West Hall, a building located on the Morrisville State College property. Defendant has submitted opposition to the motion, including affidavits of persons knowledgeable about the accident site, challenging the merits of the proposed claim.

Court of Claims Act § 10 (6) provides, in relevant part, that:

[i]n determining whether to permit the [late] filing of a claim . . ., the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.


The presence or absence of any one factor is not dispositive in the court’s consideration of a late claim motion. (see, Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979; Rice v State of New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, Sise, P.J.). Additionally, the court is afforded broad discretion in its determination and consideration of the statutory factors. Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, Sise, P.J.

EXCUSABLE DELAY
Claimant’s affidavit states that while the incident occurred on October 16, 2006, he did not contact an attorney until February 6, 2007. He states that “I was not aware of the requirement to file a Notice of Intention concerning a claim against the State of New York within 90 days of the incident.” As defendant correctly notes, ignorance of the law does not excuse a failure to comply with statutory requirements (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654; Matter of E.K. v State of New York, 235 AD2d 540, lv denied 89 NY2d 815).

NOTICE, OPPORTUNITY TO INVESTIGATE AND PREJUDICE
The claimant states that on the date of the incident he notified the Resident Director of West Hall, notified the University Police Department and gave a statement regarding the incident. The moving papers included uncertified copies of a campus police report and a voluntary statement. Defendant acknowledges the existence of these documents and does not dispute notice and an opportunity to investigate. Defendant also claims no prejudice. In light of the foregoing, these three factors present no obstacle to the claimant’s requested relief.

MERITORIOUS CLAIM
This factor is the most troubling to the court, and is often considered the most decisive, since “it would be a futile gesture to permit a claimant to file a claim which is legally defective and thus subject it to immediate dismissal” (Terrell v Green Haven Correctional Facility, Ct Cl, June 14, 1977, Rossetti, J.; see Santana v New York State Thruway Authority, 92 Misc 2d 1, 9).

The proposed claim states that:

[o]n October 16, 2006 [at approximately 12:00 p.m.], claimant Anthony J. Barotti, III sustained injuries in the following manner: Claimant was descending a staircase in West Hall when he was caused to slip on a wet stair. When the claimant tried to catch himself on the railing, he twisted his back, thereby sustaining serious and permanent personal injuries.


The claim delineates the alleged negligence of the State as follows:


[t]hat on October 16, 2006, the defendant, its agents, servants and/or employees were negligent, wanton, reckless and/or careless in, among other things, causing and/or creating a dangerous condition; in failing to provide appropriate signage, warnings, and/or markings thereby identifying the dangerous condition; in that they knew or should have known of the dangerous condition and failed to correct the same; in creating the risk of harm that befell Mr. Barotti; and the defendant, its agents, servants and/or employees were otherwise negligent, wanton, reckless and/or careless.


The affidavit of the claimant, submitted in support of this motion, expands upon the general allegations of the proposed claim and states that he slipped on the wet stairs and:

[w]hen I reached the bottom of the staircase, I observed a custodian or maintenance person mopping the floor. Upon information and belief the custodian or maintenance person caused or created the wet, slippery condition on the stairs. Alternatively, the custodian or maintenance person knew or should have known of the dangerous condition and failed to correct the same. Moreover, there were no signs or warnings with regard to the wet staircase.


In response to the motion, the defendant submitted fact affidavits from three university personnel. Mark Procopio is the Residence Director of West Hall and served in that position at the time of the alleged incident. He said that claimant reported the incident to him at approximately 4:45 p.m. on October 16, 2006. He urged claimant to seek medical attention and Procopio reported the incident to Campus Police. The uncertified copy of the Campus Police report, prepared on October 16, 2006 indicates that “RD Procopio reported R/S Anthony Barotti slipped on the wet stairs in West Hall and injured his back” (Claimant’s exhibit B).

The two janitors assigned to West Hall also provided affidavits indicating that they had no knowledge of this incident. They stated that stairways are not mopped on Mondays, and that noon is their designated lunchtime. The janitor generally responsible for this stairwell further stated that at about 8:00 a.m. on Mondays he inspects the stairs for any spills that have occurred and “if a spill had occurred . . . it would have been cleaned and mopped well before noon” (Richard Reeves’ affidavit). Furthermore, he stated that “it is my practice not to leave a mopped area, whether routinely done or in conjunction with a spill, until the area is dry.”

As can be seen from the foregoing, there is conflict - though not total inconsistency - between the statements of the janitors and those of the claimant. However, the court is satisfied that while there are issues of credibility, given this conflict, those are best resolved on the merits. Under the facts presented here, it would be improvident to deny the claimant the right to proceed, based upon credibility determinations at this early stage. The claim appears to be meritorious. “A movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists” (Papetti v State of New York, UID No. 2005-033-154, Claim No. NONE, Motion No. M-70315, Lack, J.).

ALTERNATIVE REMEDY
Claimant has no alternative remedy, other than, as defendant has noted, possible insurance for medical expenses.

JURISDICTIONAL ISSUE
The proposed claim attached to the moving papers did not set forth a total sum sought for damages, as required by Court of Claims Act § 11 (b) and as reaffirmed so recently in Kolnacki v State of New York, 8 NY3d 277, which found such a failure made the pleading jurisdictionally defective. Defendant raised this objection to the motion. However, subsequent to the submission of the State’s opposition papers, claimant’s counsel submitted a new verified proposed claim, setting forth a total sum claimed. In light of the timeliness of the submission (within the statutory limitations of Court of Claims Act § 10 [6]) and in light of no objections by defense counsel, the court accepts the “replacement” claim, and thus the jurisdictional objection is moot.

Having weighed all of the statutory factors, the court is satisfied that the claimant has met the statutory criteria for the filing of a late claim. Accordingly, claimant’s motion for permission to serve and file a late claim is hereby granted. Claimant is directed to serve a claim upon the Attorney General and to file same with proof of service, with the Chief Clerk of the Court of Claims, all within forty-five (45) days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to §§10, 11, 11-a and the Uniform Rules for the Court of Claims at 22 NYCRR § 206.1 et seq., including 22 NYCRR § 206.5-b.



June 29, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims