New York State Court of Claims

New York State Court of Claims

MEAD v. THE STATE OF NEW YORK, #2009-044-551, Claim No. 115190, Motion No. M-76663


Synopsis


Court sua sponte dismissed claim due to improper service. Claimant’s motion for permission to late file claim relating to injury incurred in prison facility’s recreation yard granted.

Case Information

UID:
2009-044-551
Claimant(s):
DOUGLAS MEAD
Claimant short name:
MEAD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115190
Motion number(s):
M-76663
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
THOMAS E. HUMBACH, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 9, 2009
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On May 1, 2006, claimant was allegedly injured when, as he was walking upon a set of bleachers in the recreation yard at Woodbourne Correctional Facility (Woodbourne),[1] a wooden plank collapsed and caused him to fall. Claimant, proceeding pro se at the time, served a notice of intention to file a claim (Notice of Intention) upon defendant State of New York (defendant) on June 7, 2006.[2] On April 30, 2008, claimant served this claim (Claim No. 115190). Defendant answered and asserted several affirmative defenses. Claimant now moves for permission to serve and file a late claim, or in the alternative, to either treat the Notice of Intention as a claim or to amend the claim to include a negligence cause of action based upon res ipsa loquitur.[3] Defendant opposes the motion. Claimant replies. By timely serving defendant with a Notice of Intention, the time in which claimant was required to serve and file a claim was extended to May 1, 2008 (see Court of Claims Act § 10 [3]). Claimant’s affidavit of service annexed to the claim states that claimant mailed the claim on April 27, 2008. The claim was filed on April 30, 2008, and received in the Attorney General’s Office on the same date. However, the envelope addressed to the Attorney General (postmarked April 28, 2008) and submitted as part of Exhibit B to defendant’s opposition papers indicates a postage amount of $0.58, which is clearly insufficient for certified mail, return receipt requested. Although defendant did not specifically move to dismiss this claim based upon improper service, it properly asserted in its Verified Answer that the Court lacks subject matter jurisdiction of this matter because the claim was served by regular mail, and thus preserved that defense pursuant to Court of Claims Act § 11 (c). Because a claimant’s “[f]ailure to comply with either the filing or service provisions of the Court of Claims Act results in a lack of subject matter jurisdiction” (Tooks v State of New York, 40 AD3d 1347, 1348 [2007], lv denied 9 NY3d 814 [2007]), the Court may address this issue sua sponte (Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 670-671 [1997]). Given claimant’s failure to comply with the statutory certified mail requirement, the Court has no subject matter jurisdiction in this action (see Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). Accordingly, Claim No. 115190 is dismissed in its entirety.

The Court must therefore address claimant’s motion for permission to file and serve a late claim.[4]
,
[5] A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act

§ 10 [6]). Claimant asserts that the allegedly wrongful conduct occurred on May 1, 2006. The statute of limitations for a negligence cause of action is three years (CPLR 214 [5]). Accordingly, this motion, mailed on April 30, 2009, is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]).

Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act

§ 10 (6) in determining a motion to permit a late filing of a claim are whether:

1) the delay in filing the claim was excusable;

2) defendant had notice of the essential facts constituting the claim;

3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;

5) 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 defendant; and

6) claimant has any other available remedy.

Claimant, now represented by counsel, argues that his previous status as an incarcerated, pro se litigant hindered his ability to properly serve the claim.[6] A claimant’s ignorance of the requirements of the Court of Claims Act, and the mere fact of his or her incarceration, are not adequate excuses for the delay in timely serving and filing a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [1978]). Accordingly, this factor weighs against claimant.

Given that the State was timely served with the Notice of Intention, defendant appropriately concedes that it had notice of the essential facts, an opportunity to investigate the matter, and that it will not be prejudiced in its defense of this claim. Thus, these three factors weigh in favor of claimant.

Another factor to be considered is whether claimant has any other available remedy. The incident occurred at a correctional facility owned and operated by the State, and defendant concedes that the Court of Claims is the appropriate forum for resolution of this matter. This factor therefore also weighs in favor of claimant.

The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199 [1992]).

It is well established that the State has a duty to maintain its facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997 [1983]). However, the State is not an insurer of the safety of its inmates, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [1993]). “It is well settled that in order to set forth a prima facie case of negligence, the [claimant] must demonstrate: (1) a duty owed by the defendant to the [claimant]; (2) a breach of that duty; and (3) an injury suffered by the [claimant] which was proximately caused by the breach” (Murray v New York City Hous. Auth., 269 AD2d 288, 289 [2000]).

Claimant alleges that on May 1, 2006, during his recreation period, he was sitting on the fourth (top) level of the outdoor bleachers at Woodbourne. When he was leaving, claimant stepped on the third level of the bleachers which allegedly collapsed underneath him without any warning. He alleges that he “fell completely through the bleachers to the unstable ground below, and suffered severe back, right hip, leg and groin injuries, and neck pain . . . [as well as] numbness in both hands and legs [and] unexpected loss of equilibrium.”[7]

In addition to the proposed claim, claimant has also submitted an affidavit in support of this motion. Claimant states that the bleachers were located in the outdoor recreation yard, and the seats consisted of wooden planks which were unpainted, warped, and weathered. He had previously used the bleachers at least twice a week, weather permitting, without any incident. According to claimant, the bleachers were supported by cinder blocks, and the mortar between the cinder blocks was breaking down. Claimant also asserts that in some places, the cinder blocks were missing completely.

Defendant argues that claimant’s general allegations of negligence are insufficient to establish a meritorious cause of action. Defendant further contends that its investigation revealed that the wooden plank which broke when claimant stepped on it was not rotten or otherwise defective.[8]

In this instance, claimant has set forth factual allegations, which if believed, establish that he was injured when he stepped on a wooden plank which broke and collapsed under him. The plank was part of a set of outdoor bleachers located in the recreation yard of a State correctional facility. Although claimant does not affirmatively identify the allegedly dangerous condition or how defendant had notice of it, he alleges that the bleachers were weathered and worn and may not have been adequately supported. These allegations are adequate to support an inference that defendant did not properly maintain the outdoor equipment. The allegations of the missing cinder blocks, cracked mortar and physical appearance of the wood, further support an inference that defendant should have had constructive notice of the deteriorated condition. The Court finds that claimant has set forth sufficient factual allegations to establish an initial appearance of merit to this claim. Accordingly, this factor of merit also weighs in claimant’s favor.

Five of the six statutory factors, including the crucial factor of merit, weigh in favor of claimant. Claimant’s motion for permission to file and serve a late claim is hereby granted.[9] Claimant shall file the proposed claim and serve a copy of it upon the Attorney General within thirty (30) days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.

September 9, 2009
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:

1) Notice of Motion filed on May 4, 2009; Affirmation of Thomas E. Humbach, Esq., dated April 23, 2009; Affidavit of Douglas Mead sworn to on April 24, 2009, and attached exhibits.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated May 27, 2009, and attached Exhibits A through D.


3) Affirmation in Reply of Thomas E. Humbach, Esq., dated June 10, 2009.


Filed papers: Claim filed on April 30, 2008; Verified Answer filed on May 23, 2008.


[1]. Claimant was an inmate in the custody of the Department of Correctional Services at the time of his accident, but has since been released from custody.
[2]. Claimant’s Motion for Permission to File and Serve a Late Claim, Exhibit A.
[3]. Claimant has attached a proposed amended claim as Exhibit F to his motion papers. In addressing this motion, the Court will treat the document as the proposed claim and refer to it as such.
[4]. The Court notes that defendant’s counsel submits that because claimant served the Attorney General’s Office improperly pursuant to Court of Claims Act § 11, rather than untimely pursuant to Court of Claims Act § 10, a motion for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6) is not permissible. This contention is completely without merit. Claimant’s failure to comply with the service requirements of Court of Claims Act § 11 means that service was not completed upon the Attorney General’s Office, bringing this motion squarely within the ambit of Court of Claims Act § 10 (6).
[5]. Defendant’s counsel also argues that claimant’s motion for permission to file and serve a late claim should be denied as moot, because a claim already exists, and defendant has not moved to dismiss it. It appears that defendant’s counsel did not move to dismiss the claim in an apparent strategic attempt to preclude this motion for a late claim. This “strategy” is not only disingenuous, but unavailing and inappropriate. Without a pending claim over which the Court has subject matter jurisdiction, a motion for leave to file and serve a late claim pursuant to Court of Claims Act § 10 (6) is, obviously, the correct course of action.
[6]. The Court notes that despite said status, claimant nevertheless properly served the Notice of Intention by certified mail, return receipt requested.
[7]. Proposed Claim, ¶ 13.
[8]. Counsel for defendant states that there is no merit to this claim because the wooden plank which broke was not rotten nor was it attached to or near a concrete post of the bleachers, as alleged by claimant in Claim No. 115190. However, counsel’s statement, whether it is based upon a review of the investigation by Woodbourne’s Fire Safety Officer or photographs taken after the incident (Affirmation of Roberto Barbosa, Assistant Attorney General (AAG), in Opposition to Motion, dated May 27, 2009, Exhibits A and D), does not appear to be based upon personal knowledge of the condition, and accordingly has not been considered by the Court in its determination.
[9]. As a result, it is unnecessary to address that portion of claimant’s motion seeking to treat the Notice of Intention as a claim.