Court denied claimant's motion for permission to late file claim for personal injuries, sua sponte dismisses claim already filed as untimely.
|Claimant(s):||KARLI M. WEITZ|
|Claimant short name:||WEITZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||DAVID W. POLAK, P.C.
BY: David W. Polak, Esq., of counsel
|Defendant's attorney:||HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Roberto Barbosa, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 7, 2009|
|See also (multicaptioned case)|
Claimant commenced this action by filing and serving a document entitled "Notice of Claim"(1) to recover for personal injuries allegedly received when she fell on the campus of the State University of New York at Cobleskill. Defendant answered and asserted several affirmative defenses. Shortly thereafter, defendant filed and served an amended answer, which included an additional affirmative defense asserting that the claim was not timely filed. Claimant now moves for permission to file and serve a late claim. Defendant opposes the motion.
In an action to recover damages for personal injuries caused by the negligence or unintentional tort of an officer or employee of the State, the claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 ). Claimant's cause of action for negligence accrued on February 28, 2009, when she fell. In order for this action to be timely, claimant was required to either serve a notice of intention to file the claim, or to file and serve the claim by May 29, 2009. Defendant was timely served with the claim on May 26, 2009. However, Claim No. 117192 was not filed with the Clerk of the Court until July 30, 2009, clearly more than 90 days after its accrual.
Nevertheless, Court of Claims Act § 11 (c) provides that "[a]ny objection or defense based upon failure to comply with . . . the time limitations contained in [Court of Claims Act § 10] . . . is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure." It is well settled that once an affirmative defense has been waived pursuant to Court of Claims Act § 11 (c), the defendant will not be permitted to amend its answer to thereafter include said defense (Oliver v State of New York, Ct Cl, May 23, 2006, Patti, J., Claim No. 111686, Motion No. M-71313, Cross Motion No. CM-71549 [UID # 2006-013-024]; Adebambo v State of New York, 181 Misc 2d 181 ; Knight v State of New York, 177 Misc 2d 181 ; see also Sinacore v State of New York, 176 Misc 2d 1, 5 n 5 ). Defendant's answer did not initially include an affirmative defense that the claim was not timely filed. Accordingly, the Court must address the issue of whether the defense had been waived before the answer was amended.
In this case, the claim was served on May 26, 2009, and defendant therefore had until July 6, 2009 to serve an answer (Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [a]).(2) Defendant served an answer on June 4, 2009, and filed a copy with the Clerk of the Court on June 8, 2009. Admittedly, the answer did not include the affirmative defense that the claim was untimely filed. Defendant thereafter amended the answer as of right (Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]) and served it on June 23, 2009, within the 40-day period immediately following service of the claim (Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [a]).
This situation parallels that in Harris v State of New York (190 Misc 2d 463 ). In Harris, the Court permitted the State to amend its answer to assert an affirmative defense of improper service where the amendment was both timely as of right (see Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]) and was also made during the original 40-day period immediately after service of the claim (see id.; cf. Oliver v State of new York, supra [where the affirmative defense was not permitted because the answer was served more than 40 days after service of the claim]). Accordingly, the Court finds that defendant has properly raised and preserved its affirmative defense that Claim No. 117192 was not timely filed (see Harris v State of New York, supra).
Defendant did not specifically move to dismiss Claim No. 117192 because it was not timely filed. However, 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 , lv denied 9 NY3d 814 ). The Court may therefore address this issue sua sponte (Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 670-671 ). As previously set forth herein, defendant properly asserted in its Amended Verified Answer that the claim was not timely filed, and thus preserved that defense pursuant to Court of Claims Act § 11 (c). Given claimant's failure to timely file this claim, the Court has no subject matter jurisdiction in this action (see Finnerty v New York State Thruway Auth., 75 NY2d 721 ). Accordingly, Claim No. 117192 is dismissed in its entirety.
The Court must now address claimant's motion for permission to file and serve a late claim. 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 ). Claimant asserts that the allegedly wrongful conduct occurred on February 28, 2009. The statute of limitations for a negligence cause of action is three years (CPLR 214 ). Accordingly, this motion, mailed on July 29, 2009, is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 ).
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 has failed to offer any excuse for her delay in timely filing the claim. Moreover, a claimant's ignorance of the requirements of the Court of Claims Act is not an adequate excuse for the delay in timely serving a notice of intention to file a claim, or in timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 , lv dismissed 99 NY2d 589 ). Accordingly, this factor weighs against claimant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. It is undisputed that claimant timely served defendant with a copy of Claim No. 117192. Defendant has conceded that it received notice of the essential facts of the claim, and has had an opportunity to investigate the underlying circumstances. Further, defendant has admitted that there will not be any prejudice to the State in defending this claim. Thus, the three factors of notice of the essential facts, an opportunity to investigate and the lack of prejudice all weigh in favor of claimant.
Another factor to be considered is whether claimant has any other available remedy. Claimant's accident occurred on a State University campus, allegedly due to defendant's negligent maintenance of the premises. As defendant appropriately concedes, the Court of Claims is the proper forum for this action against the State. This factor also weighs in favor of claimant.
The issue of whether a 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 ). 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, 202-203 ).
The State, as a landowner, has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 ; Basso v Miller, 40 NY2d 233 ; see also Clairmont v State of New York, 277 AD2d 767 , lv denied 96 NY2d 704 ). To prevail on this claim, claimant must establish by a preponderance of the credible evidence that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 ; Mercer v City of New York, 223 AD2d 688 , affd 88 NY2d 955 ).
While facts stated in a motion for leave to file a late claim against the State are normally deemed true for purpose of the motion, this rule is only applicable where such statements are made by an individual with first-hand knowledge of the facts in question (Jolley v State of New York, 106 Misc 2d 550, 551-552 ). Generally, a motion for permission to file a late claim should be supported with an affidavit from someone with first-hand knowledge of the incident, unless the information is contained elsewhere, such as the proposed claim verified by the claimant (Matter of Santana v New York State Thruway Auth., supra at 11).
Notably, there is no affidavit from the claimant herself in support of this motion for permission to file and serve a late claim. The only document verified by claimant is an attached photocopy of Claim No. 117192.(3) The Proposed Claim alleges that claimant "was made to fall due to a dangerous and hazardous condition while attempting to access the entrance of Fake Hall [and that as a result, she] sustained fractures to each of [her] elbows."(4) The Proposed Claim lacks any information concerning either the nature of the allegedly dangerous condition or how defendant may have acquired notice of that condition. Moreover, any allegations which might arguably be sufficient to support this motion are made by claimant's counsel, who states that "[c]laimant was walking towards the rear entrance to Fake Hall when she was caused to trip and fall due to a low-hanging rusted chain across the walkway, placed there by [defendant's] employees."(5) Counsel clearly lacks any first-hand knowledge of the circumstances.(6) The conclusory allegations of negligence are insufficient to establish the appearance of merit of the Proposed Claim (see Brown v State of New York, Ct Cl, Jan. 15, 2003, Lebous, J., Claim No. None, Motion No. M-66056 [UID # 2003-019-503]). Consequently, this factor weighs against claimant.
The lack of a reasonable excuse for the delay in filing a claim as well as claimant's failure to establish the crucial factor of the appearance of merit weigh against granting permission to file and serve a late claim. Accordingly, claimant's motion is denied without prejudice.
In conclusion, Claim No. 117192 is dismissed. Claimant's Motion for Permission to File and Serve a Late Claim is denied.
December 7, 2009
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed on July 29, 2009; Affirmation of David W. Polak, Esq., dated July 29, 2009, and attached exhibits.
2) Affirmation in Opposition of Roberto Barbosa, Assistant Attorney General, dated August 4, 2009, and attached Exhibit 1.
Filed papers: Claim filed on July 30, 2009; Verified Answer filed on June 8, 2009; Amended Verified Answer filed on June 25, 2009.
1. The "Notice of Claim" was treated as a Claim by both the Clerk of the Court, who assigned it Claim No. 117192, and by defendant, who promptly served and filed an answer. Accordingly, the Court will refer to said "Notice of Claim" as Claim No. 117192.
2. Because the 40th day after May 26, 2009 was a Sunday, defendant was given until Monday, July 6, 2009 to serve the answer (General Construction Law § 25-a ).
3. The Court will treat the attached copy of Claim No. 117192 as the "Proposed Claim."
4. Proposed Claim, ¶¶ 5-6.
5. Affirmation of David W. Polak, Esq., dated July 29, 2009, in Support of Motion for Permission to File and Serve a Late Claim, ¶ 4.
6. Counsel has also attached a copy of an incident report apparently prepared by University Police. This report contains the hearsay statement that claimant fell over a chain across the sidewalk, and is likewise not based upon any first-hand knowledge of the facts.