New York State Court of Claims

New York State Court of Claims

LANGNER v. THE STATE OF NEW YORK, #2008-015-031, Claim No. 114541, Motion Nos. M-74360, CM-74530


Synopsis


Defendant's motion for dismissal based on claimant's failure to comply with pleading requirements of Court of Claims Act was granted and claimant's cross-motion for late claim relief was denied. Multiple errors in the notice of intention and the claim, including the place of the accident, prejudiced the defendant in the prompt investigation of the claim.

Case Information

UID:
2008-015-031
Claimant(s):
JEREMY MARC LANGNER, individually and as Proposed Administrator of the Estate of ALFRED B. LANGNER, deceased and BARBARA P. LANGNER
Claimant short name:
LANGNER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114541
Motion number(s):
M-74360
Cross-motion number(s):
CM-74530
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Shandell, Blitz, Blitz and Ashley, LLP
of Counsel to Andrew L. Weitz & Associates, P.C.By: Stewart G. Milch, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 7, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant moves to dismiss the claim as untimely and for failure to state a cause of action pursuant to CPLR 3211 (a) (2) and (7) and Court of Claims Act § 10 and § 11. The motion is premised, first, on the contention that the three notices of intention to file a claim served by the claimants were jurisdictionally defective and, therefore, ineffective to extend the period in which to file a claim. Secondly, the defendant contends that the claim fails to satisfy the pleading requirements of Court of Claims Act § 11 (b) and fails to state a cause of action. Claimants cross-move to amend the notices of intention to file a claim and the claim or, in the alternative, for permission to file a late claim pursuant to Court of Claims Act § 10 (6). The claim alleges that the claimant Barbara P. Langner and her husband, Alfred B. Langner, (hereinafter the decedent) were injured on January 25, 2007 when their motor vehicle was caused to leave the southbound lanes of I-95 in Essex County and become embedded in a snow bank "for a dangerously long period of time, without access by the claimants to urgently required cellular phone sites, and/or emergency telephone services . . ." (see claim, defendant's Exhibit D, par. 3). It is alleged that Mr. Langner died and the claimant Barbara P. Langner suffered serious injuries as a result of the incident (see claim, defendant’s Exhibit D). The caption reflects that the claim was filed on behalf of “Jeremy Marc Langner, individually and as Proposed Administrator of the Estate of Alfred B. Langner, deceased and Barbara P. Langner” against the State of New York. The body of the claim, however, makes no reference to the State of New York. Instead the claim specifically alleges that the County of Essex and the Town of North Hudson owned, designed, planned, constructed, operated, maintained, managed and controlled “the public roadway known as I-95 southbound, in the vicinity of and/or .5 miles from milepost marker 105, in the County of Essex, State of New York” (see claim, defendant's Exhibit D, pp 3,4).

The claim was served on November 13, 2007 and filed on November 29, 2007, the same day Jeremy Marc Langner was appointed Executor of the Estate of Alfred B. Langner (see Letters Testamentary, claimants' Exhibit D). The filing of the aforementioned claim was preceded by the service of three notices of intention to file a claim, all of which state that the accident occurred on January 25, 2007 on "Interstate 87 [not I-95 as alleged in the claim] in the Town of North Hudson, County of Essex, more specifically the location of the accident was I 87; .5 miles from Mile post marker 105” (see defendant’s Exhibits A, B and C, ¶¶ 3).

Two notices of intention to file a claim were personally served on April 25, 2007. One notice was served on behalf of Jeremy M. Langner, individually, and as proposed executor of the estate of Alfred B. Langner. This notice identified the County of Essex and the Town of North Hudson as the entities responsible for the personal injuries and death of the decedent Alfred B. Langner. There is no allegation that the State was negligent or any other information from which the negligence of the State can be inferred.

The second notice of intention served on April 25, 2007 was on behalf of Barbara Langner.[1] Like the first notice of intention, it names only the County of Essex and the Town of North Hudson as culpable parties and fails to allege that the State was negligent or otherwise provide any information from which the negligence of the State can be inferred.

On April 30, 2007 a third notice of intention to file a claim was served on behalf of Barbara P. Langner by certified mail, return receipt requested. This notice of intention names the State of New York in the caption but, like the two notices which preceded it, fails to allege that the State was negligent or otherwise provide any information from which the negligence of the State can be inferred. In addition, the notice was served more than 90 days after the cause of action accrued and is improperly verified by counsel for the claimants (see CPLR 3020[d] [3]; Court of Claims Act § 11 [b]). Claimants' counsel candidly concedes that the notice is a nullity (see claimants' counsel's affirmation in support of cross-motion and in opposition to respondent's motion to dismiss, F1), stating:
“With regard to Exhibit “C” annexed to the Respondent’s Affirmation in Support, Claimants must concede that it appears to be a Notice of Intention to Make a Claim. As such, it was served more than 90 days after the incident, is incorrectly verified and should be considered a nullity. Moreover, even if it were considered a Claim for any purposes it would be jurisdictionally defective because it fails to state a total sum of money damages. Kolnacki v. State of New York, 8 NY3d 277 (2007).”
A negligence claim for personal injuries is required to be filed and served within 90 days after the accrual of the claim unless, within such time, the claimant serves a notice of intention to file a claim in which event the claim is required to be filed and served within two years of its accrual (Court of Claims Act § 10 [3]). A wrongful death claim is required to be filed and served within 90 days after the appointment of the estate representative unless, within such time, the claimant serves a notice of intention to file a claim in which event the claim is required to be filed and served within two years following the death of the decedent (Court of Claims Act § 10 [2]). As the claim in this case was not filed and served until November 2007, more than 90 days after the claim accrued, the sufficiency of the notices of intention is critical to the determination of the timeliness of the personal injury and wrongful death claims.

" 'Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed' " (Long v State of New York, 7 NY3d 269, 276 [2006], quoting Lichtenstein v State of New York, 93 NY2d 911, 913 [1999][other citations omitted]). In Lepkowski v State of New York, 1 NY3d 201 [2003], the Court of Appeals held (at page 207) that Court of Claims Act § 11 (b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) 'the nature of [the claim]'; (2) 'the time when' it arose; (3) the 'place where' it arose; (4) 'the items of damage or injuries claimed to have been sustained'; and (5) 'the total sum claimed.' " A notice of intention to file a claim must comply with the same conditions except that the items of damage or injuries sustained and the sum claimed need not be set forth.

The defendant first argues that the nature of the claim was not sufficiently set forth in the notices of intention served on April 25, 2007 because neither mentioned the State nor set forth the manner in which the State was negligent. With respect to the requirement that the nature of the claim be set forth, "the notice of intention need not be exact but should provide an indication of the manner in which the claimant was injured and how the State was negligent . . . or enough information so that ‘how the State was negligent can be reasonably inferred’ " (Rodriguez v State of New York, 8 AD3d 647, 647 [2004] [citations omitted]). The statement must be "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 short, substantial compliance with section 11 is what is required' " (Wharton v City Univ. of N.Y., 287 AD2d 559, 560 [2001], quoting Grumet v State of New York, 256 AD2d 441, 442 [1998]). “Although a notice of intention to file a claim need not include all the facts necessary to state a cause of action, it must at least set forth the ‘general nature of the claim’ ” (Cendales v State of New York, 2 AD3d 1165, 1167 [2003], quoting Sega v State of New York, 246 AD2d 753, 755 [1998]; cf. Ferrugia v State of New York, 237 AD2d 858 [1997]). Conclusory allegations of negligence which fail to set forth the manner in which the claimant was injured and at least a general statement of how the State was negligent fail to satisfy the requirements of § 11 (b) (id.). The notices of intention in this case fail to meet these minimal requirements.

Both of the notices of intention served on April 25, 2007 failed to name the State as a party against whom a claim was intended to be made and failed to provide any indication of the manner in which the State was negligent. In fact, the State of New York is not mentioned in either notice of intention. Instead, the notices refer only to the County of Essex and the Town of North Hudson. Accordingly, the notices of intention were plainly insufficient to enable the State to “investigate the claim promptly and to ascertain its liability under the circumstances” (Wharton v City Univ. of N.Y., 287 AD2d at 560). The notice of intention served on April 30, 2007 was untimely and, therefore, as conceded by claimants’ counsel, did not act to extend the claimants' time to serve and file a claim.

As the notices of intention failed to satisfy even the minimal requirements of particularity required in a notice of intention to file a claim, the personal injury causes of action asserted in the claim on behalf of the claimants Barbara P. Langner and the decedent Alfred B. Langner were untimely.[2]

As to the cause of action for wrongful death, the claim was filed on the same date the executor was appointed to administer the estate (see Court of Claims Act § 10 [2]). Service of the claim, however, was effected prior to the date of the appointment of the estate representative cf. Rodriguez v State of New York, UID # 2007-015-203, Claim No. 113166 [Ct Cl, June 26, 2007] Collins, J.). In this regard Court of Claims Act § 10 (2) requires that a wrongful death claim be “filed and served upon the attorney general within ninety days after the appointment” of an estate representative [emphasis added]; see also Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]). As more than 90 days have now elapsed from the date of the appointment of an estate representative and service of the claim was not accomplished within the time period provided by the statute, the wrongful death cause of action is untimely.

Not only is the claim untimely, it also fails to state a cause of action and otherwise meet the pleading requirements of Court of Claims Act § 11 (b). Conclusory or general allegations of negligence that fail to set forth the manner in which the claimant was injured and how the State was negligent fail to state a cause of action in negligence (Patterson v State of New York, 54 AD2d 147 [1976], affd 45 NY2d 885 [1978]). Nowhere in the body of the claim is it alleged that the State of New York was negligent. In fact, the State of New York is not even mentioned in the body of the claim. Rather, the allegations in the claim repeatedly reference the conduct of the County of Essex and the Town of North Hudson. The mere inclusion of the State in the caption falls far short of stating a cause of action against the State of New York (id.). To confuse matters more, the wrong location of the accident (I-95) is alleged in the claim, which, in itself, renders the claim jurisdictionally defective (cf. Triani v State of New York, 44 AD3d 1032 [2007]; Cobin v State of New York, 234 AD2d 498 [1996], lv dismissed 90 NY2d 925 [1997], rearg denied 91 NY2d 849 [1997]; Sinski v State of New York, 265 AD2d 319 [1999]; Rizzo v State of New York, 2 Misc 3d 829 [2003]). As stated by claimants' counsel in paragraph 9 of his affirmation in support of the cross-motion and in opposition to the motion to dismiss, "Interstate 87 runs through Essex County; Interstate 95 doesn't come close . . . ". Thus, as the defendant correctly points out, the claim fails to state a cause of action against the State of New York and also fails to meet the pleading requirements of Court of Claims Act § 11 (b). The claim is therefore jurisdictionally defective and subject to dismissal on this basis alone.

To the extent the claimants move to amend the notices of intention and the claim, the motion must be denied. It is well settled that a jurisdictionally defective pleading may not be cured by amendment (Nasir v State of New York, 41 AD3d 677 [2007]; Grande v State of New York, 160 Misc 2d 383 [Ct Cl, 1994]). A notice of intention to file a claim is not a pleading and is therefore not subject to amendment after the expiration of the statutory time period provided for service of the notice (see CPLR 3011; CPLR 3025; 22 NYCRR § 206.7). Amendment of a notice of intention is particularly inappropriate given its purpose of enabling the State to investigate a claim promptly and thereby ascertain its potential liability (Schmidt v State of New York, 279 AD2d 62 [2000]; Blaylock v State of New York, 13 Misc 3d 1219[A] [2006]). Accordingly, the defendant’s motion to dismiss the claim is granted and the claimants’ cross-motion is denied to the extent it seeks to amend the notices of intention and the claim.

The Court next turns to the claimants’ request to file a late claim. Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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."

This subdivision also requires that “[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application.”

No proposed claim was submitted in support of the claimants' application for late claim relief as required by Court of Claims Act § 10 (6), and this fact alone warrants denial of the motion (see Dellacruz v State of New York, UID # 2007-028-542, Claim No. None [Ct Cl, March 30, 2007], Sise, P.J.). Nonetheless, the Court will consider the proposed amended claim (claimants’ Exhibit C) submitted in connection with the claimants' cross-motion as the "claim proposed to be filed" for the purposes of the late claim motion.

The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." The proposed amended claim asserts causes of action for personal injury and wrongful death. The three year statute of limitations set forth in CPLR § 214 applies to the personal injury causes of action and a two year statute of limitations applies to the wrongful death cause of action (see EPTL § 5-4.1; Loperfido v State of New York, UID # 2006-028-546, Claim No. 110163 [Ct Cl, April 13, 2006] Sise, P. J., unreported); Wright v State of New York, 195 Misc 2d 597 [2003], appeal dismissed 11 AD3d 1000 [2004]). Claimants' cross-motion is therefore timely.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).

Claimants assert no excuse for their failure to timely serve and file their claim, stating only that the notices of intention were timely served. However, it is settled that neither ignorance of the law nor the inadvertent failure to comply with the jurisdictional requirements of the Court of Claims Act provide an acceptable excuse for delay in the service and filing of a claim (Erca v State of New York, 51 AD2d 611 [1976], affd 42 NY2d 854 [1977]; Matter of Robinson v State of New York, 35 AD3d 948 [2006]; Gatti v State of New York, 90 AD2d 840 [1982]). Here, both the notices of intention and the claim contained defects which could easily have been avoided. There is no reasonable excuse for the delay in these circumstances. The lack of a reasonable excuse weighs against the claimants in determining the motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Claimants assert that an extensive police investigation of the accident ensued shortly after it occurred which obviates any surprise or prejudice resulting from the delay in filing the claim. Inasmuch as the defendant has conceded that it was neither surprised nor prejudiced by the delay in filing a claim, these factors weigh in favor of the claimants.

With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates 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 (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [1977]). Claimants here have failed to establish the potential merit of their claim.

The proposed amended claim corrected the place of the accident to reflect that it occurred on I-87, not I-95 as alleged in the previously filed claim, and that it was the State of New York, not the County of Essex or the Town of North Hudson, which owned, designed, and maintained the roadway. Like the previously filed claim, the proposed amended claim alleges causes of action for personal injuries on behalf of Alfred B. Langner and Barbara P. Langner and a wrongful death cause of action on behalf of the estate of Alfred B. Langner.[3]

With respect to the allegations of negligence against the State, the proposed amended claim, verified only by counsel, alleges that the State was negligent in the maintenance, design, and construction of the roadway. In particular, the proposed amended claim alleges that the State was negligent in failing to remove or properly remove snow and ice from the roadway, in failing to properly design and construct the roadway in the area of the accident and in failing to provide suitable cell phone service or other means of emergency contact (see proposed amended claim, claimants' Exhibit C). No experts' affidavits were submitted in support of the claimants’ late claim application nor any other evidence to substantiate these allegations.

Conclusory allegations of negligence unsupported by factual detail are insufficient to establish the potential merit of the claim (Olsen v State of New York, 45 AD3d 824 [2007]; Witko v State of New York, 212 AD2d 889 [1995]; Sevillia v State of New York, 91 AD2d 792 [1982]). “Icy road conditions and the occurrence of an accident do not establish defendant’s liability, unless it is also shown that defendant failed to diligently remedy the dangerous conditions once it was provided with actual or constructive notice” (Hart v State of New York, 43 AD3d 524, 525 [2007]; see also Johnson v State of New York, 265 AD2d 652 [1999]; Slaughter v State of New York, 238 AD2d 770 [1997]; Freund v State of New York, 137 AD2d 908 [1988], lv denied 72 NY2d 802 [1988]). Constructive notice is not established by a general awareness that icy conditions may exist (Hart v State of New York, 43 AD3d at 525; see also Richer v State of New York, 31 AD3d 943 [2006]). Furthermore, neither meteorological data nor affidavits from anyone with personal knowledge of the weather or the condition of the roadway where the accident occurred were submitted. In a similar context the Appellate Division, Third Department held the following (Calco v State of New York, 165 AD2d 117, 119-120 [1991], lv denied 78 NY2d 852 [1991]):
"As to claimant's motion to file a late claim, it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse (see, e.g., Matter of Donaldson v State of New York, 167 AD2d 805 [1990]). The Court of Claims must consider the factors enumerated in Court of Claims Act § 10 (6) and no single factor is controlling (id.). The Court of Claims denied claimant's motion finding several factors, such as prejudice to the State and the availability of other recourse, weighing in claimant's favor, but ultimately determined that the absence of any showing of merit to the claim justified denial. We find no abuse in this determination. Claimant argues that the State negligently maintained the highway where the accident occurred by permitting snow and ice to accumulate. These allegations, however, are conclusory in nature, without any recitation concerning the duration that the conditions were allowed to remain, the extent of any snow or ice cover, the manner in which the accident occurred or other factual matters . . .. Under such circumstances, we see no reason to disturb the determination reached by the Court of Claims (see, Sevillia v State of New York, 91 AD2d 792, 458 NYS 2d 69)."
The conclusory allegation that the State was negligent in clearing snow and ice from the roadway is insufficient to establish the potential merit of the claim.

With respect to the allegation that the roadway was negligently designed, claimants failed to support this allegation with an expert’s affidavit or any other evidence of a deviation from accepted design standards. As noted by Judge Corbett in Nyberg v State of New York (154 Misc 2d 199 [1992]) “late claim applications alleging negligence in highway design and construction must be supported by the sworn opinion of someone with related expertise” (id. at 202). Nyberg was later cited with approval by the Appellate Division, Second Department, in Klingler v State of New York, 213 AD2d 378 [1995], which held that “[t]he claimant’s unsupported opinion that her motor vehicle accident might not have happened had the State installed a traffic light at the intersection where it occurred does not suffice to establish that her claim has merit” (id. at 379; see also O’Brien v State of New York, UID # 2002-015-274, Claim No. None, [Ct Cl, July 19, 2002] Collins, J.; Moore v State of New York, Claim No. None, UID # 2002-015-277, [Ct Cl, August 2, 2002] Collins, J.). In the absence of an expert’s affidavit or any other evidence of a deviation from accepted design standards, the potential merit of this aspect of the claim was not established.

Lastly, the claimants allege that the State was negligent in failing to provide cell phone service or other means of emergency contact in the area where this accident occurred. Claimants cite no case in support of the proposition that the State has a duty to provide such service, however, and the Court can find none.

The scope of a tortfeasor's duty is, in the first instance, a legal issue for the Court to resolve (Waters v New York City Hous. Auth., 69 NY2d 225, 229 [1987]). In making this determination the courts must be mindful of the consequential future effects of their decisions and the need “to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability. In fixing the bounds of that duty, not only logic and science, but policy play an important role” (Strauss v Belle Realty Co., 65 NY2d 399, 402 [1985] [internal citations and quotations omitted]; see also Milliken & Co. v Consolidated Edison Co. of N.Y., 84 NY2d 469 [1994]). “Foreseeability, alone, does not define duty - - it merely determines the scope of the duty once it is determined to exist. The injured party must show that a defendant owed not merely a general duty to society but a specific duty to him or her, for ‘[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm’ ” (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001] [internal citations omitted]). Guided by these principles, the Court concludes that the State owed no duty to provide cellular phone service or other means of emergency contact on the highway where this accident occurred. To hold otherwise would impose insurer-like liability upon the State. Any potential duty to install and maintain cellular phone service on Interstate 87 runs only to society at large and not specifically to the claimants herein. As such, claimants have failed to establish the existence of a legal duty upon which liability may be imposed.

As to the final factor to be considered, claimants' counsel avers that no alternate avenue of redress is available.

As the claimants have failed to assert a reasonable excuse for the delay in filing their claim and to demonstrate its potential merit, the Court declines to exercise its discretion to permit the filing of a late claim. Accordingly, claimants' application for such relief is denied.

Based on the foregoing, the defendant's motion to dismiss the claim is granted and the claim is dismissed. The claimants' cross-motion is denied in its entirety.



May 7, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 21, 2007;
  2. Affirmation of Belinda A. Wagner dated December 21, 2007 with exhibits;
  3. Notice of cross-motion dated February 11, 200[8];
  4. Affirmation of Stewart G. Milch dated February 11, 2008 with exhibits;
  5. Affirmation of Belinda A. Wagner dated February 27, 2008;
  6. Affirmation of Stewart G. Milch dated March 3, 2008.

[1]. The notice of intention was served on behalf of “Barbra” Langner while her name in the claim is spelled “Barbara” P. Langner. For the purpose of uniformity her name will be spelled herein “Barbara” Langner.
[2]. Although the caption of the claim includes Jeremy Marc Langner, individually, no cause of action in his individual capacity is alleged in the filed claim.
[3]. The proposed amended claim also asserts causes of action on behalf of each spouse for emotional suffering based upon the fact that each was within the “zone of danger” of the other. The claimant, Barbara Langner, also asserts a claim for loss of consortium. Although the defendant contends that these causes of action are meritless, the Court finds it unnecessary to address the merits of these causes of action in light of its decision herein.