|Claimant short name:||GRUIA|
|Footnote (claimant name) :|
|Defendant(s):||SUNY DOWNSTATE MEDICAL CTR.|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Jack Gruia, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Keith Nezowitz, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||October 3, 2017|
|See also (multicaptioned case)|
Movant, proceeding pro se, brings a motion (M-90497) seeking permission to file a late claim sounding in negligence against the State for property damage to his car. Movant, who works at SUNY Downstate Medical Center (SUNY Downstate), asserts that, on August 17, 2016, his car sustained damage after SUNY Downstate employees performed lawn care on the area adjacent to his car. Specifically, movant alleges that the lawn care activity caused pebbles and stones to hit his car, causing damage. Defendant opposes the motion on the grounds that: (1) movant has not provided a reasonable excuse for his delay in filing the claim; (2) the claim is jurisdictionally deficient because it does not comply with the specificity requirements contained in Court of Claims Act § 11 (b); (3) the claim is not meritorious; and (4) movant failed to state whether or not he has an alternate remedy available to him in the form of insurance on his vehicle.
The statute of limitations applicable to a claim alleging damages for injury to property is three years (CPLR 214 ). As movant's motion seeking permission to file and serve a late claim was served upon defendant on May 11, 2017, it is timely under the CPLR. Accordingly, the Court must determine: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the State was substantially prejudiced by the delay; (5) whether claimant has any other available remedy; and (6) whether 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 states that he attempted to file his claim on November 24, 2016 in Brooklyn, New York. He was told that he could not file his claim in Brooklyn, and that the claim must be filed in Albany, New York. Defendant argues that this factor does not weigh in movant's favor because movant fails to explain why he did not file this late claim motion until May 11, 2017, nearly six months after he attempted to file a claim in Brooklyn. The Court agrees that, due to movant's failure to explain this delay, this factor does not weigh in movant's favor.
The next three factors - defendant's notice of the issues, opportunity to investigate, and prejudice - are interrelated and therefore frequently considered together. Defendant does not dispute that it had notice of the issues and an opportunity to investigate the incident, nor does it argue that it would be prejudiced if the Court were to allow movant to file the claim. In support of his motion, movant attaches a police report filed on the day of the incident that indicates that a police officer responded and inspected movant's damaged vehicle. Additionally, movant submits an e-mail chain showing that he communicated with SUNY Downstate's counsel regarding reimbursement for the damage to his vehicle. Thus, the Court finds that these three factors weigh in movant's favor.
As to the fourth factor, defendant argues that movant has not shown that he has no alternate remedies. Defendant asserts that movant does not state whether he submitted an insurance claim for the damage to his vehicle. Indeed, movant does not state in his application whether alternate remedies are available to him. However, because defendant's assertion is speculative, the Court finds that this factor weighs in neither party's favor.
Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that the proposed 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 there is a heavier burden on a movant who is seeking to file late than upon a claimant whose claim is timely (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11), in order to meet that burden, a proposed claim need only have "the appearance of merit" (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]). A proposed claim "must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and the total sum claimed" (Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept 2013]; see Court of Claims Act § 11 [b]). "While absolute exactness is not necessary, a [movant] must provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of [its] liability" (Sommer v State of New York, 131 AD3d 757, 757-758 [3d Dept 2015] [internal quotation marks and citations omitted]).
Here, movant's proposed claim states that he returned to his vehicle at the end of his workday and found it damaged. He surmised that the damage had been caused by maintenance workers who had removed weeds from the area adjacent to his vehicle. He claims that the Director of Engineering/Assistant Vice President for Facilities took responsibility for the damage but never followed up with movant. According to movant, the Director of Engineering/Assistant Vice President for Facilities admitted to never following up with his staff to make sure that the area where movant's car was parked was sectioned off before starting the maintenance work on the day in question. In support of his claim, movant submits a police report corroborating his version of events, which notes that upon inspection, the officer saw a "plethora of scratches" on movant's vehicle. He also attaches pictures of the damage to his claim. Lastly, movant attaches e-mail correspondence from SUNY Downstate's counsel indicating that SUNY Downstate considered reimbursing him for the damage to his car. Additionally, the claim states that movant is seeking $12,000 in damages. Although the requirements of Court of Claims Act § 11 (b) are inartfully pled, the Court finds that the proposed claim is not patently groundless, frivolous or legally defective. Thus, the Court finds that the final factor of merit weighs in movant's favor.
Upon balancing all of the factors in Court of Claims Act § 10 (6), the Court grants claimant's motion for permission to file and serve a late claim (M-90258). Claimant is directed to file and serve the claim annexed to his motion. Claimant shall file and serve said claim within forty-five (45) days of the filing of this decision and order, in compliance with Court of Claims Act §§ 11 and 11-a.
October 3, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion for Permission to File a Late Claim; with Proposed Claim and supporting documents, dated May 11, 2017.
2. Affirmation in Opposition, affirmed by Keith Nezowitz, AAG, on July 11, 2017.