New York State Court of Claims

New York State Court of Claims

LANDMAN v. THE STATE OF NEW YORK, #2008-030-581, Claim No. NONE, Motion No. M-75773


Late claim motion granted. Claimant alleges she fell in concealed man hole on snow covered great lawn at SUNY Purchase. Alleges defendant had removed the cover and did not post any warnings. Even if no reasonable excuse, incident immediately investigated, reports written, photographs taken. The incident reports note the allegedly defective condition and causally connect claimant’s injuries. Lapse of time from February 2008 to making motion in October 2008. No prejudice

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:
Third-party defendant’s attorney:

Signature date:
December 10, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for permission to

serve and file a late claim:

1,2 Notice of Motion; Affirmation by Marsha S. Weiss, Attorney for Claimant and attached exhibits

  1. Affirmation in Opposition by Rachel Zaffrann, Assistant Attorney General
  1. Reply Affirmation by Marsha S. Weiss, Attorney for Claimant
Hilary Landman alleges in her proposed claim that she fell and suffered personal injuries on February 22, 2008 on the “Great Lawn” of the school due to the negligence of defendant’s agents at the State University of New York at Purchase (hereafter SUNY). [Affirmation by Marsha S. Weiss, Exhibit C]. More specifically, she alleges that defendant took the metal lid [ibid. Exhibit B] off a man-made hole that is part of the school’s sewage infrastructure, and did not post any warnings or place any barricades or other devices to warn those who might utilize the lawn area of the existence of a dangerous condition. Additionally, the opening to the hole was also not apparent because it was covered with snow.

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing 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 meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.[1] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001). Indeed, even if the excuse offered is “not compelling”, when the delay is minimal, when no prejudice would be suffered by the State, and when there are issues of fact as to the merits of the claim, late claim relief should be granted. Jomarron v State of New York, 23 AD3d 527, 528 ( 2d Dept 2005).

A copy of the proposed claim[2], must accompany the motion, allowing the Court to ascertain the particulars of the claim, including “. . . the time when and place where such claim arose, the nature of same, the items of damage or injuries claim to have been sustained . . . ” Court of Claims Act §11(b); see 22 NYCRR §206.6.

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time 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 . . .” Court of Claims Act § 10(6). Here, the applicable statute of limitations is three (3) years, thus the motion is timely. Civil Practice Law and Rules §214.

A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that 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 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.

By way of excuse, claimant did not consult an attorney and had been pursuing medical care for her knee during the first ninety (90) days after her fall. An 18 year old living away from home for the first time when the accident occurred, she was unaware of any time constraint associated with pursuing a claim. She alleges that the State had timely notice of the essential facts as well as an opportunity to investigate because two days after her fall, she sent an e-mail to John Delate, the SUNY Director of Residence Life advising him of the accident, and thereafter provided campus security with information. [Affirmation by Marsha S. Weiss, Exhibits A, D]. A security officer inspected the scene in claimant’s company on February 26, 2008, took photographs, and rendered an incident report. [Ibid. Exhibits A, E].

Defendant argues that claimant has not established a reasonable excuse for her delay in filing, and has not established that the State has notice and has a reasonable opportunity to investigate. [Affirmation in Opposition, ¶ 5]. The defendant also argues that the State will be “severely prejudiced” if late claim relief is allowed and that the claim lacks merit. [Id.].

Unlike a claimant who has been hospitalized throughout the first ninety days after an accident, the fact of receiving medical care, and the nature of her injuries to her knee, do not constitute a reasonable excuse in the nature of a disability. See Wolf v State of New York, 140 AD2d 692, 693 (2d Dept 1988)[3]; Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). Any lack of knowledge of the law or an inability to retain counsel do not constitute acceptable excuses. Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd, 60 NY2d 654 (1983). An excuse, however, is but one of the factors to be considered, and its presence or absence does not conclude whether late claim relief is afforded. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant’s motion. While the defendant correctly notes that knowledge of an incident and preparation of a report concerning it does not necessarily impute the notice required [see e.g. Weber v County of Suffolk, 208 AD2d 527 (2d Dept 1994)] in this case, the reports do make “. . . mention of the allegedly defective condition which caused the claimant to slip and fall, and . . . connect the claimant’s injuries to . . . negligence on the part of the State . . .” Quilliam v State of New York, 282 AD2d 590, 591 (2d Dept 2001); see Reaves v New York City Housing Authority, 4 Misc 3d 1008(A) (Queens Co Sup Ct 1994); cf. Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413 (2d Dept 2004).

Indeed, the incident report prepared here by Roberto Caban on February 26, 2008 notes that the “hole was about 2 feet wide and 2 feet deep and had metal framing surrounding it” and that investigator “PO McGowan” took a photograph of the hole, which was uncovered as it had been when claimant indicates she fell. [Affirmation by Marsha S. Weiss, Exhibits A, B and E].

Moreover, any lapse of time is not so great that the State’s ability to further investigate is impeded to its prejudice. See e.g. Welch v State of New York, 286 AD2d 496 (2d Dept 2001) (almost three year delay); Sandlin v State of New York, 294 AD2d 723 (3d Dept 2002) (two and one-half year delay; DeJesus v County of Albany, 267 AD2d 649 (3d Dept 1999) (fifteen month delay); Weber v County of Suffolk, supra, (twenty-one month delay). What is more significant than the mere passage of time between the accident in February 2008 and the making of this motion in October 2008,[4] however, are the issues of prejudice and the ability to investigate. In this regard, the court does not find defendant’s argument that it is now too late to undertake an adequate investigation persuasive. There is documentation in the form of an incident report and photographs, and the investigators - who physically examined the site - are named. Claimant, and other students she named, witnessed the accident. The uncovered manhole is part of the sewage system of the grounds, as noted in the incident report.

Although the State has a duty as a landlord to prevent foreseeable risks of harm, it is not the insurer of public safety. Its duty is to exercise “reasonable care under the circumstances . . .” [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. To establish a prima facie case of negligence generally the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.

For premises liability, assuming that the State did not create the dangerous condition, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Potentially significant here - depending on how the factual issues might be resolved when issue is joined and a plenary trial is held - is that creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transportation Auth., 99 AD2d 246, 249 (1st Dept 1984), affd 64 NY2d 670 (1984). With respect to constructive notice, any “. . . defect must be visible or apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . (citation omitted).” Gordon v American Museum of Natural History, supra at 837.

SUNY has a duty to “act as a reasonable [man] in maintaining property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk.” Miller v State of New York, 62 NY2d 506, 513, 478 NYS2d 829, 833 (1984); Preston v State of New York, 59 NY2d 997, 998, 466 NYS2d 952 (1983).

Based on the allegations in the claim, supported by claimant’s sworn affidavit, and the incident report showing exactly what dangerous condition existed at the time of claimant’s fall - namely a two foot wide and two foot deep hole in an area traversed by the public - claimant has made the requisite showing of the appearance of merit. If there is an issue as to the control of the situs of the accident, that is merely an issue of fact and does not preclude late claim relief.

Accordingly, after careful consideration of all the pertinent factors, claimant’s motion for permission to serve and file a late claim is hereby granted. Claimant may serve her proposed claim upon the Attorney General, and may file it with the Chief Clerk of the Court of Claims, with proof of such service, all within forty (40) 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 and 11-a, and the Uniform Rules for the Court of Claims.

December 10, 2008
White Plains, New York

Judge of the Court of Claims

[1]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]
[2]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . .”
[3].Fact of prolonged hospitalization due to automobile accident, and its documentation, provided reasonable excuse for delay in filing.
A motion is “made, when a notice of motion . . . is served.” Civil Practice Law and Rules §2211; see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983).