(1) Defendant's cross-motion to dismiss for untimely service granted. (2) Claimant's late claim application arising out of a trip and fall at Unemployment Insurance Appeals Board granted. Defendant's unsupported assertion that it informed claimant that it did not own or maintain the property at issue at the time of the accident, did not rebut the appearance of merit.
|Claimant short name:||ANDREWS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||David A. Weinstein|
|Claimant's attorney:||Yadgarov & Associates, PLLC
By: Robert Yadgarov, Esq.
|Defendant's attorney:||Eric Schneiderman, NYS Attorney General
By: Daniel Chu, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 23, 2012|
|See also (multicaptioned case)|
Claimant Dwayne Andrews moves this Court for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6). Defendant opposes claimant's application and cross-moves to dismiss claim no. 120038 on the ground that it was untimely served. Claimant does not oppose defendant's cross-motion.
Claim no. 120038, alleges that the State was negligent in creating a trip hazard which caused claimant to trip and fall on April 4, 2011. The claim was filed with the Court on June 30, 2011, but was not served on the Attorney General's Office until August 22, 2011. The claim was rejected by the Attorney General by letter dated August 23, 2011, for failing to include a verification (Motion No. M-80955, Aff. in Supp. Ex. E). A notice of intention was not served on defendant. Defendant's application is premised solely on the ground that the claim was untimely served.
A claim for negligence is governed by Court of Claims Act § 10(3), which provides in pertinent part that:
"A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor. . ."
Timely service is a jurisdictional requirement that must be strictly construed, and the failure to file within the designated period is fatal to the claim (see Welch v State of New York, 286 AD2d 496 [2d Dept 2001]).
Objections based upon failure to timely serve and file a claim must be raised with particularity in the answer or in a pre-answer motion, pursuant to Court of Claims Act § 11(c). Here, defendant served an answer pleading with particularity the failure to timely serve the claim. Claimant submits no opposition to the cross-motion, and his counsel acknowledges (in his affirmation in support of the application for permission to file a late claim) that the claim was mailed to the Attorney General's Office on August 19, 2011 (Motion No. M-80955, Aff. in Supp. ¶ 6). This falls beyond the 90-day time period of section 10(3).
In light of the foregoing, defendant's cross-motion no. CM-81006 is granted.
Motion No. M-80955
Andrews' application for permission to file a late claim is accompanied by a proposed claim, which is a copy of the filed claim no. 120038. In that claim, Andrews alleges that on April 4, 2011, while he was at the offices of the Unemployment Insurance Appeal Board ("UIAB" or the "Board") at 9 Bond Street in Brooklyn, he "was caused to trip and/or slip and fall and be injured" as a result of the State's negligence. In an affidavit filed in support of the motion, Andrews states that while he was attempting to leave the "Reviewing Room" at the UIAB office, he "was caused to fall and injure both [his] knees due to a negligently used/placed computer cord," which wrapped around his right foot (Andrews Aff. ¶¶ 2-3).
The present motion also includes an affirmation from claimant's counsel detailing the procedural history of the action, including the prior claim, as outlined supra.
The application to file a late claim was filed within the relevant statute of limitations, so that the Court has jurisdiction to grant relief under section 10(6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ). Those factors are whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the claimant has any other available remedy. These factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling (id.).
In regard to the first factor, claimant has failed to proffer a valid excuse for not filing this claim timely. The absence of a verification and the failure to timely serve the initial claim reflect claimant's failure to comply with statutory procedure. This does not constitute a valid excuse under section 10(6) (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009] ["law office failure" not valid excuse under section 10(6)]; Matter of Bonaventure v New York State Thruway Auth., 114 AD2d 674 [3d Dept 1985], affd 67 NY2d 811  [failure to properly serve claim not valid excuse under section 10(6)]; Mason v State of New York, UID No. 2010-015-152, Collins, J. [Ct Cl June 11, 2010] [failure to verify claim not valid excuse under section 10(6)]). This factor thus weighs against claimant's application.
Whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion, are closely related and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]).
There is ample evidence in the present record indicating that the State had notice of the incident at issue well before it was served with the present motion. First, according to claimant, he was approached just after he fell by a woman who advised him that she was an employee of the UIAB, and that it was her duty to investigate the incident. Andrews states that he showed her the cord on which he tripped, and told her he had injured both his knees and ankles (Andrews Aff. ¶ 4). Second, claimant provides a copy of a fax he sent the UIAB on April 14, seeking an extension of time to file a brief in a matter before the Board. In the fax, Andrews stated: "I had a slip and fall injury on your premises and was unable to work on my brief."(1) Third, claimant served a copy of his present claim on the Office of the Attorney General on August 22, 2011(2) (Cross-Motion No. CM-81006, Aff. in Supp. ¶ 3).
Defendant does not contest these assertions, nor does it proffer any evidence showing that it was prejudiced by the delay, and thus I accept claimant's version of events for purposes of the present motion (see Buch v State of New York, UID No. 2011-044-542, Schaewe, J. [Ct Cl Sept. 26, 2011] [accepting statements in claimant's affidavit as true on late claim motion, when they "have not been contradicted or denied in an answering affidavit by one with personal knowledge of the situation"]). In light of the facts set forth in Andrews' submission, these factors weigh in claimant's favor.
The standard to be applied when weighing the apparent merit of a proposed claim was articulated in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To appear meritorious, a claim "must not be patently groundless, frivolous, or legally defective," and the record as a whole including the proposed claim and any affidavits or exhibits must give "reasonable cause to believe that a valid cause of action exists" (Id. at 11).
In his claim and supporting affidavit, claimant presents allegations of negligence by the State that meet the standard set forth in Santana. In response, defendant argues that the present claim lacks merit because (1) the Fire Department Ambulance Report (the "Report") (Claimant's Ex. D) states, in contrast to the narrative given in Andrews' own affidavit, that claimant "tripped up on a chair while trying to go around someone . . . ," and makes no reference to wires or cables (Aff. in Opp. ¶ 9); (2) Andrews does not append signed or certified medical records to his motion (id. ¶ 10); and (3) "the defendant informed movant's counsel verbally on several occasions as well as highlighted in its . . . Seventh Affirmative Defense that the State does not own, operate or maintain the area described in the claim," and movant has not moved to dismiss that affirmative defense (id. ¶ 11).
None of these arguments rebuts the proposed claim's appearance of merit. The first contention, at most, raises a factual conflict between the account given in claimant's affidavit and that set forth in the Report. That defendant raises "issues of fact as to the merits of the claim," however, does not vitiate the appearance of merit under section 10(6) (Jomarron v State of New York, 23 AD3d 527, 527 [2d Dept 2005]; see also Marcus v State of New York, 172 AD2d 724, 725 [2d Dept 1991] [finding that "although a sharp but undeveloped factual issue exists . . . there appears to be merit to the claim within the meaning of Court of Claims Act § 10(6)"]).
Regarding the documentation presented on claimant's injuries, there is simply no support for the State's assertion that certified medical records must be adduced in a motion to file a late claim. Certification is relevant to the admissibility of a hospital record at trial under CPLR § 4518, but there is no requirement that evidence must be in admissible form to warrant consideration on a motion to file a late claim (see Ledan v State of New York, UID No. 2009-030-554, Scuccimarra, J. [Ct Cl Sept. 17, 2009] ["no hard and fast requirement of a particular kind of proof is mandated" on a late claim motion; thus outside medical malpractice, there is no blanket rule that medical records must be submitted in a late claim motion]). Here, claimant has submitted an affidavit made on personal knowledge as to the nature of the injury he suffered, along with medical records detailing his injury. That is sufficient, for purposes of this motion, to show he has a viable claim for damages.
As to the assertion of defendant that it told claimant's attorney that the State did not own or maintain the property at issue at the time of the accident, this unsupported statement by counsel does not rebut the appearance of merit.
Claimant alleges that his injuries took place in the office of the UIAB. By all appearances, the UIAB is a state entity; its members are appointed by the Governor (see Labor Law § 534) and its procedures are established by the New York State Department of Labor (see 12 NYCRR, Part 463.(3) Defendant, in any case, makes no argument to the contrary. Nor does defendant offer any evidence to show that the UIAB did not own the property at issue at the time of the accident, or - to the extent it did not - why as a tenant it was not responsible for the property's maintenance (see Cohen v Central Parking Sys., 303 AD2d 353, 354 [2d Dept 2003] ["A tenant may be held liable for a dangerous or defective condition on the premises it occupies
. . . "]; Zuckerman v State of New York, 209 AD2d 510, 511 [2d Dept 1994] ["An occupant of premises, like an owner, has a common law duty to keep the property in reasonably safe condition"]).
If the State did not own the property, it is unclear why it could not present some documentary evidence - such as the lease, or an affidavit from an individual at the UIAB with personal knowledge - showing such, and supporting its contention that the State was not responsible to maintain the property it occupied. The ipse dixit of defendant's attorney, however, is not sufficient for this purpose (Wilks v State of New York, UID NO. 2006-036-574, Schweitzer, J. [Dec. 29, 2006] [granting late claim despite "attorney affirmation which asserts in conclusory terms" that property was subleased by public authority; affirmation and supporting documentation only created issue of fact]; see also Marcus, 172 AD2d at 725 [reversing denial of late claim application despite "undeveloped factual issue" regarding state ownership]; compare Sumowicz v State of New York, UID No. 2006-036-550, Schweitzer, J. [Sept. 5, 2006] [late claim denied based on affidavit from official of Office of General Services showing, through title search, that subject property had been conveyed to different owner]).
Further, the fact that claimant has not moved to strike the State's affirmative defense on this issue does not bolster defendant's argument. Indeed, the State asserts that Andrews' initial claim was not timely served, and that this defect is jurisdictional (Chu Aff. ¶ 4). There would have been little reason for claimant to engage in motion practice on a doomed claim, prior to the adjudication of this late claim application.
For all these reasons, Andrews has established the appearance of merit, and this factor weighs in his favor.
Finally, defendant contends that claimant has an alternative remedy: to "investigat[e] and initiat[e] a lawsuit against the proper party" (Aff. in Opp. ¶ 11) This is essentially a reiteration of the State's assertion that it neither owned nor was responsible for maintaining the building at issue, and that some (unnamed) other entity is therefore the proper object of this suit. For reasons stated above, the State has not provided any competent evidence to support this contention, and thus it has failed to demonstrate that claimant has an alterative remedy.
In sum, the statutory factors weigh heavily in the claimant's favor. The mere fact that claimant lacks a cognizable excuse - the only factor on the State's side of the ledger - is not, by itself, grounds to deny claimant's application (see Matter of Hughes v State of New York, 25 AD3d 800 [2d Dept 2006] [reversing denial of late claim application; "[w]hile the claimants did not provide an acceptable excuse for their failure to timely file their detailed notice of intention to file a claim under Court of Claims Act § 10 (6) . . . the delay was minimal and the respondent was not prejudiced thereby"]; Jomarron, 23 AD3d at 527 [reversing denial of late claim application; "[e]ven if the excuse for failing to file a timely claim is 'not compelling,' the denial of a motion to file a late claim may, as here, constitute an improvident exercise of discretion where the delay is minimal, the State suffered no prejudice, and there may be issues of fact as to the merits of the claim").
Accordingly, having reviewed the submissions and having considered all of the factors enumerated in the Court of Claims Act § 10(6), IT IS ORDERED that motion no. M-80955 be granted, and that within thirty (30) days of the filing of this Decision and Order, claimant shall serve and file a properly verified claim substantially in the form of the proposed claim annexed as exhibit A to his moving papers, entitling it Claim.(4) In serving and filing the claim, claimant shall comply with all of the requirements of Court of the Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a.
IT IS FURTHER ORDERED defendant's cross-motion no. CM-81006 be granted that claim no. 120038 be dismissed.
April 23, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
1. Claimant's Notice of Motion for Permission to File a Late Notice of Claim, Affirmation, and annexed exhibits.
2. Defendant's Notice of Cross-Motion to Dismiss, Affirmation in Support of Cross-Motion and in Opposition to Claimant's Notice of Motion for Permission to File a Late Notice of Claim, and annexed exhibit.
1. The fax states that it appends a doctor's note, but none is included in the present submission.
2. Although such service was made after the 90-day period for filing the notice of intention or claim, at very least any prejudice the State might have suffered from lack of timely service ceased at that time.
4. Counsel shall file a new copy of the claim without a file stamp, that is properly dated, and without a reference that it was served and filed within 90 days of accrual.