New York State Court of Claims

New York State Court of Claims

GIANELLI v. STATE OF NEW YORK, #2008-018-645, Claim No. NONE, Motion Nos. M-75453, CM-75556


Motion to file late claim denied, cross-motion to dismiss previously served “Notice of Claim” granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: EDWARD F. McARDLE, ESQUIREAssistant Attorney General, of Counsel
Third-party defendant’s attorney:

Signature date:
February 13, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Movant has brought a motion for permission to file a late claim. Defendant opposes the

motion and brings a cross-motion to dismiss a previously served “Notice of Claim.”[1]
The proposed claim attached to Movant’s application seeks damages for injuries Movant suffered when she stepped into an uneven and broken area of pavement and fell on August 23, 2007. The portion of the sidewalk where Movant fell is within the City of Syracuse, near City Hall, but in front of the Senator John A. Hughes State Office Building (hereinafter State Office Building).

Court of Claims Act § 10(6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act § 10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10[6]). Movant’s motion is timely (Court of Claims Act § 10[6]; CPLR § 214[5]).

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10(6), and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Cooperative Section IV, Inc., v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

The first factor, is whether the delay in filing the claim is excusable. It is argued that Movant suffered a head injury that prevented her from adequately determining exactly where she fell which led to the her suing the City of Syracuse instead of the State of New York. Yet, Movant’s “Notice of Claim” against the City of Syracuse reflects that as of November 10, 2007, within 90 days of accrual of the claim and still in time to bring a timely claim, she knew she had fallen a few yards from City Hall on the “sidewalk near State Bldg.” [sic]. Movant’s attorney also indicates that there may have been a language barrier which prevented adequate communication between Movant and her counsel. This, however, is also not a valid excuse (see Rodrigues v State of New York, 143 AD2d 993).

Movant emphasizes the fact that she originally sued the City of Syracuse for her fall and was advised after a 50-h hearing that she had sued the wrong party. An issue exists as to whether Movant sued the wrong party, but accepting for the moment that she did, if Movant had diligently pursued her claim against the State upon learning of this error, similar mistakes have been found to be a reasonable excuse (see Matter of Gross v State of New York, 9 AD2d 594; Farnham v State of New York, 195 Misc 380). However, here, Movant learned of her error before May 19, 2008, yet took more than 90 days to file her late claim application (see Gatti v State of New York, 90 AD2d 840). As a result, this factor must weigh against granting Movant’s application.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant asserts that the State had notice of the dangerous condition of the sidewalk because of the evidence of “previous inadequate repairs” to the concrete panels. Defendant denies any notice of Movant’s fall, and states that the State does not repair, maintain, or improve the portion of the sidewalk on which Movant allegedly fell. Mr. Scot Smith, the Building Manager for the State Office Building submits, by affidavit, that National Grid is responsible for maintenance of that portion of the sidewalk. Mr. Smith also claims that the State will suffer prejudice by the granting of this late claim application, as more than a year has passed since Movant fell precluding a timely investigation. The Court finds that these factors do not weigh in Movant’s favor.

The next factor, whether the claim appears to be meritorious, is often the most difficult and is referred to as the most essential factor. Generally, a proposed claim meets this standard 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 (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11).

It is Movant’s claim that she fell on a public sidewalk in front of the State Office Building in the City of Syracuse. Under the common law, “liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner” (Hausser v Giunta, 88 NY2d 449, 452, 453). There are exceptions to this general rule, when the sidewalk was constructed in a “special manner for the benefit of the abutting” landowner or that landowner has acted affirmatively to construct or repair the sidewalk or “a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty.” (Id. at 453). Movant asserts in the proposed claim that the State was making “special use” of that portion of the sidewalk as an access way into the State Office Building. In her supporting papers Movant also asserts, through her attorney, that the defect on which she fell was created by construction work performed on the sidewalk. In response, by affidavit, Mr. Smith, the Building Manager for the State Office Building, provides that the State does not perform any construction or maintenance on this sidewalk. Mr. Smith, however, does not set forth the basis of his knowledge or the time frame.

Movant’s burden on a motion for permission to file a late claim is slight in that all that must be shown is potential merit of a claim that is not patently groundless, frivolous or legally defective. Typically, factual issues are viewed in favor of the Movant and left, more appropriately, to be determined at trial after discovery is complete (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976; Deutsch v City University of New York, Ct Cl, Sise, Presiding Judge, signed December 21, 2007, Claim No. 113685, Motion Nos. M-73670, CM-73725, UID # 2007-028-584). Yet where the facts asserted by Movant are pointedly contradicted by Defendant’s submissions, the Court must assess whether the appearance of merit even exists. The State may only be held liable under these circumstances if it falls into one of the three exceptions: it has made a special use of the public sidewalk, it has made modifications to or performed some work on the sidewalk, or there is a statute or ordinance which specifically imposes the duty for the sidewalk on the abutting landowner and imposes liability for the breach of that duty.

The doctrine of special use contemplates the imposition of liability upon an abutting landowner where “permission has been given, by a municipal authority, to interfere with a street solely for private use and convenience in no way connected with the public use.” (Kaufman v Silver, 90 NY2d 204, 207, quoting Clifford v Dam, 81 NY 52, 56-57). The abutting landowner must derive some special benefit from the public property unrelated to the public use, placing the duty upon the landowner to maintain the property that is being used in a reasonably safe condition (Poirier v City of Schenectady, 85 NY2d 310, 315). Here, Movant makes no allegation of any special use by the State, as defined by case law, of the sidewalk in front of the State Office Building for its benefit (see Guadagno v City of Niagara Falls, 38 AD3d 1310; Thomas v Triangle Realty Co., 255 AD2d 153). The only special use alleged is the same use that would be made by a visitor to any building or location in the City - namely that of ingress and egress to the building. This is not a special use (see Berkowitz v Spring Creek, Inc., 56 AD3d 594, 596 [ “...the mere fact that the taxi service’s patrons used the sidewalk to get to the taxi service’s taxis was insufficient to establish that the defendants made a special use of the sidewalk”]).

Movant asserts that the State modified or maintained the sidewalk creating the dangerous condition. The State denies this and offers that the location where Movant fell is part of a panel for an electrical vault which is owned and maintained by National Grid. Mr. Smith does not set forth the basis of his knowledge. Based upon the denial that the State repaired, maintained, or improved the area where Movant fell, the Court cannot merely accept Movant’s counsel’s assertion without any basis for his position that the State created the alleged defect.

Nor does Movant point to any ordinance or statute imposing upon abutting landowners both the duty and the imposition of liability for the failure to properly maintain the public sidewalk. Defendant presents as Exhibit 2, a copy of City of Syracuse Ordinance § 24-30. This ordinance places upon an owner of any land within the city limits the duty to keep any adjoining sidewalk in good repair and in good and safe condition, free of obstructions and weeds, flowers, bushes, shrubs, or grass constituting a visual obstruction to vehicular traffic on the street (City of Syracuse Ordinance 8-1-66, § 24-30). The ordinance does not impose liability for a breach of the duty upon the landowner. Movant has not asserted any other ordinance which would impose such liability.

Under these circumstances, Movant has failed to allege facts which set forth even the appearance of a meritorious claim. This factor weighs against granting Movant’s application.

The final factor is whether the proposed claimant has any other remedy available. Since either the City of Syracuse or National Grid bear responsibility for this portion of the sidewalk, Movant has some other remedy.

Accordingly, based upon the foregoing Movant’s application is DENIED.
Defendant alleges that it was served with a “Notice of Claim” on August 22, 2008, which it attaches to its motion papers as Exhibit 1. This “Notice of Claim” is identical to the proposed claim attached to Movant’s late claim application. No claim has been filed with the Clerk of the Court.

Court of Claims Act § 10(3) requires that a claim sounding in negligence be filed and served within 90 days of the date of accrual unless a Notice of Intention is served upon the Attorney General within that time in which case, a claim must be filed and served within two years of the date of accrual. No notice of intention was ever served, and the claim was not timely served or filed. The requirements for timely filing and serving of a claim are strictly construed jurisdictional prerequisites to the institution and maintenance of any action against the State (Buckles v State of New York, 221 NY 418; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

Accordingly, Defendant’s cross-motion is GRANTED.

February 13, 2009
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding these motions:


1. Notice of Motion

2. Proposed “Notice of Claim,” Affidavit of Lorenza Gianelli, in support, sworn to July 15, 2008, Affidavit of George Alessio, Jr., Esquire, in support, sworn to July 15, 2008, with exhibits attached thereto.


3. Notice of Cross-Motion to Dismiss Claim.

4. Affirmation in opposition and in support of cross-motion to dismiss claim of
Edward F. McArdle, Esquire, Assistant Attorney General, dated September 19, 2008,with exhibits attached thereto.

5. Affidavit in opposition of Scot Smith, sworn to September 18, 2008.

6. Letter dated September 30, 2008, from George P. Alessio, Esquire, in opposition, which was filed with the Clerk of the Court on September 30, 2008.

[1].No claim was ever filed with the Clerk of the Court.