Motion for late claim relief pursuant to Court of Claims Act § 10 (6) is denied, as movant failed to establish that the proposed claim has merit.
|Claimant short name:||SCHWARTZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Law Offices of Dinara Maylov
By: Dinara Maylov, Esq.
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Edward J. Curtis, Jr., Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||October 3, 2017|
|See also (multicaptioned case)|
Movant moves for leave to file and serve a late claim to recover damages from the State of New York resulting from movant's slip and fall at the New York State Department of Motor Vehicles (DMV) building in Brooklyn, New York on January 12, 2017. The State opposes the motion on the ground that the proposed claim lacks merit, as the State does not own the building where movant sustained injuries.
Specifically, movant's proposed claim alleges that she slipped and fell on a slippery floor while walking inside a building, located at 2875 W. 8th Street, Brooklyn, New York 11224, that was owned, operated, maintained, managed, and controlled by the New York State Department of Motor Vehicles. Because the motion was brought within the three-year statute of limitations applicable to negligence claims under CPLR 214 (5), such relief is left to the discretion of the Court (see Court of Claims Act § 10 ; Tartaglione v State of New York, 51 Misc 3d 1220 [A], *1 [Ct Cl 2016]; compare Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984]). In deciding whether to grant a late claim application, the Court must consider whether: (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the State was substantially prejudiced by the delay; (5) claimant has any other available remedy; and (6) the claim appears to be meritorious (see Court of Claims Act § 10 ). While the presence or absence of any one of these factors is not dispositive (see Williams v State of New York, 133 AD3d 1357 [4th Dept 2015]), the last factor is generally the most decisive inasmuch as "'it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion'" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
As to the first factor, movant's counsel contends that the failure to timely file a claim was due to miscommunications within their law office, in conjunction with a delay caused by the law office's closure during the Passover holiday from April 7-19, 2017. It is well settled, however, that law office failure is not an adequate excuse for failing to meet statutory filing deadlines (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009]; Matter of Magee v State of New York, 54 AD3d 1117, 1118 [3d Dept 2008]; Matter of Bonaventure v New York State Thruway Auth., 114 AD2d 674, 674-675 , affd 67 NY2d 811 ). Nevertheless, the absence of an excuse for late filing is only one of the factors considered by the Court in reviewing a late claim application and does not necessarily preclude the relief sought here (see generally Williams v State of New York, 133 AD3d at 1357).
The three factors of defendant's notice of and opportunity to investigate the essential facts constituting the claim and the lack of substantial prejudice to be incurred by granting late claim relief are frequently analyzed together since they involve similar considerations. Movant contends that the State had notice and an opportunity to investigate the essential facts constituting the claim because a DMV supervisor assisted movant after her fall, and the New York City Police Department responded to the accident. Defendant has not asserted that it cannot conduct an investigation , or that it cannot determine the facts of the claim. Additionally, defendant has not asserted that it will be substantially prejudiced by a delay in filing the claim. Given that movant's motion to file a late claim was filed only nine days after the expiration of the 90-day statute of limitations contained in Court of Claims Act § 10 (3), the Court finds that these three factors weigh in movant's favor.
With respect to the factor of alternative remedies, movant claims that she has no alternative remedy. Defendant argues that movant does have an alternative remedy, as she could file an action against the landlord of the building in Supreme Court. As defendant has presented evidence in the form of a sublease agreement, (Exhibit A), showing that the State does not own the subject building and is not responsible for its maintenance, the Court finds that this factor weighs against movant, as she could file an action against the landlord of the building in Supreme Court.
Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 ; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
Here, defendant contends that movant's claim lacks merit because the State does not own or maintain the building where movant sustained injuries. In support of this contention, defendant attached relevant pages of the sublease agreement between the sublandlord of the premises located at 2875 W. 8th Street, Brooklyn New York 11224 and the State of New York (Exhibit A). The relevant pages show that the State does not own the subject premises, it only leases the premises. The document further shows that repairs and janitorial services are provided by the sublandlord, not the State. Movant argues that the issue of ownership of the building should have no bearing on the Court's determination of whether the proposed claim has merit (Reply to Affirmation in Opposition, ¶ 11). The Court finds movant's argument unpersuasive. Contrary to movant's assertion, the State's ownership, or lack thereof, of the building where the accident occurred does bear on the question of whether the proposed claim has merit (Andrews v State of New York, UID No. 2012-049-020 [Ct Cl, Weinstein, J., Apr. 23, 2012] [finding that the proposed claim established the appearance of merit where the State asserted, but failed to produce documentary evidence supporting, the contention that the State did not own the property]). Here, movant does not dispute defendant's assertion that the State does not own the subject building, and does not challenge the accuracy of the documents presented by defendant. Accordingly, because movant has not refuted defendant's contention that it does not own the subject building, the Court finds that movant has failed to show that her proposed claim demonstrates merit (Sumowicz v State of New York, UID No. 2006-036-550 [Ct Cl, Schweitzer, J., Sept. 5, 2006] [finding that the proposed claim failed to demonstrate merit where movant did not refute defendant's assertion that it did not own or maintain the subject premises]; compare Marcus v State of New York, 172 AD2d 724 [2d Dept 1991] [granting late claim relief where the County of Suffolk and the State of New York both denied ownership of subject highway, creating a factual issue as to which governmental entity maintained the roadway]).
Based upon the foregoing, it is hereby
ORDERED, that movant's motion for late claim relief (M-90298) is denied.
October 3, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion and Affirmation in Support of Motion for Permission to File a Late Claim, affirmed by Dinara Maylov, Esq., on April 21, 2017, with exhibit.
2. Affirmation in Opposition to Movant's Motion for Permission to File a Late Claim, affirmed by Edward J. Curtis, Jr., AAG, on June 12, 2017, with exhibit.
3. Reply to Affirmation in Opposition, affirmed by Dinara Maylov, Esq., on June 19, 2017.