Late claim motion was granted.
|Claimant short name:||BOVE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the sole properly named defendant is the State of New York.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Ateshoglou & Aiello, P.C.
By: Philip V. Aiello, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Gwendolyn Hatcher, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 20, 2009|
|See also (multicaptioned case)|
Rosalind Bove moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In her proposed claim, Ms. Bove alleges that on August 19, 2008, she tripped and fell on an uneven, raised portion of sidewalk on the pedestrian bridge which crosses the Prospect Expressway, at Greenwood Avenue and Prospect Avenue in Brooklyn.
In order to determine this motion, the Act sets forth six factors which are to be weighed:(2) whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.
As to notice, claimant has not submitted any documentary evidence of her fall; her papers do not indicate whether, for example, an incident report or police report was prepared. She argues that these factors have been met because she sent FOIL requests to the Metropolitan Transportation Authority ("MTA") and the State Department of Transportation ("DOT") on October 16, 2008 and January 7, 2009, respectively. The MTA is an entity distinct from the State of New York, i.e., a public corporation established by statute. See Public Authorities Law §1260, et seq. As to the FOIL request served on the State DOT, it does not describe or even indicate that claimant fell, and as to the location, describes it only as a "Pedestrian bridge located at Greenwood Avenue and Prospect Avenue, Brooklyn, NY."
However, while the State may not have had notice of Bove's accident, in her proposed claim, she further describes the location as "near the base of the bridge adjacent to the sidewalk," and the proposed claim annexes six color copies of photographs, which show the location and the alleged defect.(3) In view of the foregoing, I find that defendant will have the opportunity to investigate and has not been prejudiced.
As to an alternate remedy, it appears undisputed that claimant's sole remedy lies against the State of New York in this Court. With regard to excuse, counsel essentially states that it was first believed that the accident site was under the jurisdiction of the MTA or the City of New York. Misapprehension as to which governmental entity is the proper defendant is not an excuse recognized for the purposes of the Act. See, e.g., Matter of E.K. v State of New York, 235 AD2d 540 (2d Dept 1997), lv denied, 89 NY2d 815 (1997).
Finally, it must be determined whether the proposed claim appears meritorious. In addition to the aforementioned photographs, claimant has submitted an affidavit stating that she fell on an uneven, raised portion of walkway, and that she suffered injuries including a fractured ankle. In order to be meritorious, a proposed claim "must not be patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists . . ." Sands v State of New York, 49 AD3d 444 (1st Dept 2008). I find that claimant here meets this standard.
Accordingly, having considered the six factors in view of the parties' submissions(4) , IT IS ORDERED that motion no. M-76422 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file her proposed claim, including the aforementioned copies of photographs, in compliance with §§11 and 11-a of the Court of Claims Act.
August 20, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
3. While the proposed claim submitted with Bove's moving papers states that the photocopies are annexed, they were not in fact attached to the motion papers submitted to the Court. At the Court's request, counsel for claimant subsequently submitted the photocopies, which he states were "inadvertently not included in our initial moving papers."
4. The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A through F; defendant's affirmation in opposition; and the June 2, 2009 letter of claimant's counsel annexing six color copies of photographs.