Defendant's cross motion to dismiss the claim as untimely was granted and claimant's motion to file a late claim was denied as she failed to demonstrate that the majority of factors to be considered weighed in her favor.
|Claimant short name:||O'SHEA|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE THRUWAY AUTHORITY|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Abdella and Sise, LLP
By: Joseph M. Sise, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Thomas P. Carafa, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 24, 2021|
|See also (multicaptioned case)|
Claimant moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). Defendant cross-moves to dismiss Claim No. 135226 on the basis it is untimely and fails to meet the pleading requirements of Court of Claims Act § 11 (b).
Claimant seeks damages for injuries allegedly sustained in a slip and fall on ice in the parking area of the Schuyler Travel Plaza in the Town of Frankfort, County of Montgomery, State of New York, on December 17, 2019 at approximately 2:00 a.m. Claimant alleges the defendant, New York State Thruway Authority (Thruway Authority), was responsible for maintaining the area where the claimant fell. The State of New York is not named as a defendant in the pending action.
With respect to the timeliness of the pending claim, it is undisputed that the claim in this matter was filed in the Office of the Clerk of the Court of Claims on August 20, 2020. It is also undisputed that although various efforts were made to serve the Attorney General with a notice of intention to file a claim, a notice of intention was not served upon the Thruway Authority.(1)
Regarding service of the claim on the Attorney General, both parties agree that service was accomplished by certified mail, return receipt requested, on August 24, 2020 when it was received in the Attorney General's office. With respect to service of the claim on the Thruway Authority, although Richard Lombardo, Chief Litigation Counsel at Thruway Authority, indicates the claim was served on the Thruway Authority by certified mail, return receipt requested, on October 13, 2020 (defendant's Exhibit D on cross motion, ¶ 3), claimant's counsel indicates it was served by certified mail, return receipt requested, on October 9, 2020 (see claimant's Exhibit 6 submitted in opposition to cross motion). In any event, absent service of a notice of intention on the Thruway Authority, the filing of the claim on August 20, 2020 and service of the claim thereafter was untimely.
Court of Claims Act § 10 (3) requires that an unintentional tort claim such as this be filed and served within 90 days following accrual of the claim unless within such time a notice of intention is served upon the Attorney General, in which event the claim shall be filed and served within two years of its accrual. With regard to actions involving the Thruway Authority, Court of Claims Act § 11 (a) (ii) states the following:
" In any action brought in the court of claims against the New York state thruway authority . . . a copy of the claim shall be served personally or by certified mail, return receipt requested, upon such defendant, in addition to the attorney general, within the times hereinbefore provided for filing with the clerk of the court, and any notice of intention shall be served personally or by certified mail, return receipt requested, upon such defendant, in addition to the attorney general, within the times hereinbefore provided for service upon the attorney general."
The requirement for service on the Thruway Authority arises from the fact that the Thruway Authority is "an autonomous public corporation, with an existence separate and independent from the State . . . with the power to sue and be sued" (Bonaventure v New York State Thruway Auth, 108 AD2d 1002, 1003 [3d Dept 1985] [internal quotation marks and citations omitted], citing, inter alia, Public Authorities Law § 354 ). As a result, service of a claim or notice of intention upon the Attorney General does not constitute service on the Thruway Authority (Johnson v New York State, 71 AD3d 1355 [3d Dept 2010], lv denied 15 NY3d 703 ; Swart v New York State Thruway Auth., 70 Misc 3d 1209 [A] 2020 NY Slip Op 51595 [U] [Ct Cl, 2020]). While the claim here was served on the Thruway Authority (and the Attorney General), the notice of intention was not. Accordingly, claimant does not receive the benefit of the extended period for service and filing of the claim provided under § 10 (3). As a result, both the filing and service of the claim were untimely, having been accomplished beyond the 90-day period prescribed in Court of Claims Act § 10 (3). Inasmuch as the defendant preserved its defense to the timeliness of the claim by raising it as its first affirmative defense in the answer (Court of Claims Act § 11 [c]; cf. Johnson v New York State, supra), Claim No. 135226 must be dismissed as untimely.
Turning to claimant's motion for leave to serve and file a late claim, the first issue for determination upon a late claim motion is whether the application is timely. Court of Claims Act § 10 (6) requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Personal injury claims are governed by the three year statute of limitations set forth in article two of the CPLR (CPLR 214 ). Consequently the instant motion filed on October 13, 2020 is timely with respect to the claimant's proposed personal injury cause of action as set forth in the proposed claim attached to counsel's affirmation in support as claimant's Exhibit 1.
Turning to the statutory factors, Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 the state; and whether the claimant has any other available remedy." This Court has broad discretion in deciding a motion to permit the late filing of a claim (Calverley v State of New York, 187 AD3d 1426 [3d Dept 2020]; Matter of Barnes v State of New York, 164 AD3d 977 [3d Dept 2018]; Williams v State of New York, 137 AD3d 1579 [4th Dept 2016], appeal dismissed, lv denied 28 NY3d 958 ). " 'No one factor is deemed controlling, nor is the presence or absence of any one factor determinative' " (Hyatt v State of New York, 180 AD3d 764, 766 [2d Dept 2020], lv denied 35 NY3d 909 , quoting Casey v State of New York, 161 AD3d 720, 721 [2d Dept 2018]; see also Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Matter of Barnes v State of New York, 158 AD3d 961, 962 [3d Dept 2018]; Matter of Martinez v State of New York, 62 AD3d 1225 [3d Dept 2009]; Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
Claimant's counsel's excuse for the delay in commencing an action is his mistaken belief that the Thruway Authority had been served. Such an excuse is tantamount to law office failure and does not constitute an acceptable excuse (Hyatt v State of New York, 180 AD3d at 766; Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009]). While this factor weighs against claimant, standing alone it is not determinative of the instant application.
Addressing the intertwined issues of notice, opportunity to investigate and prejudice, claimant's counsel contends that the State had notice and a sufficient opportunity to investigate the claim as the Attorney General was served with various notices of intention within the requisite 90-day period and, in any event, the accident was investigated by Trooper DiMartin of the New York State Police as well as Thruway Authority employees who assisted claimant at the scene of her accident. However, as defendant points out in opposition to the motion, notice to the Office of the Attorney General does not constitute notice to the Thruway Authority. The notices of intention served on the Attorney General do not, therefore, demonstrate that the Thruway Authority had notice of the essential facts constituting the claim. In addition, the notices of intention, like the claim itself, fail to indicate where in the parking lot of the Schuyler Travel Plaza this accident occurred and are therefore insufficiently particular to enable the Thruway Authority to investigate the accident and determine its liability under the circumstances (Lepkowski v State of New York, 1 NY3d 201, 207 ; Hyatt v State of New York, 180 AD3d 764, 767 [2d Dept 2020], lv denied 35 NY3d 909 ). Moreover, while a report prepared by the New York State Police may, depending on its content, provide the State with actual knowledge of the essential facts giving rise to the claim (see Hyatt v State of New York, 180 AD3d at 767; Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist., 90 AD3d 761 [2d Dept 2011]), it does not provide notice to an autonomous public corporation such as the Thruway Authority (Block v New York State Thruway Auth., 69 AD2d 930, 931 [3d Dept 1979] ["while the State arguably had notice of the automobile accident through the State Police investigation thereof, neither respondent had timely notice of the existence of the present claim against them and its underlying facts so as to trigger an investigation of the claim and avoid substantial prejudice to respondents"]). To the extent claimant's counsel references an investigation performed by an employee of the Thruway Authority, his averments are unsupported by a copy of an investigatory report, or the statement of someone with knowledge of an investigation. Considering the transitory nature of the condition which allegedly caused claimant's fall, it cannot be concluded on this record either that the Thruway Authority had notice of the claimant's slip and fall and an opportunity to investigate it, or that no prejudice would result should late claim relief be granted.
With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective, and the record as a whole provides reasonable cause to believe that a valid cause of action exists (Matter of Martinez v State of New York, 62 AD3d 1225, 1227 [3d Dept 2009]; Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
As a landowner, the Thruway Authority, owes a duty "to exercise reasonable care under the circumstances in maintaining its property in a safe condition" (Mesick v State of New York, 118 AD2d 214, 216-217 [3d Dept 1986], appeal denied 68 NY2d 611  [citations omitted]; see also Sherman v New York State Thruway Auth., 27 NY3d 1019 ; Preston v State of New York, 59 NY2d 997, 998 ; Guzman v State of New York, 129 AD3d 775, 776 [2d Dept 2015]; Carter v State of New York, 119 AD3d 1198, 1199 [3d Dept 2014]). In order to establish liability for injuries arising from a dangerous condition on defendant's premises, it must be shown that the owner either created the condition or had actual or constructive notice of its existence (Piacquadio v Recine Realty Corp. 84 NY2d 967 ; Gordon v American Museum of Natural History, 67 NY2d 836 ; Reid v State of New York, 61 AD3d 1063 [3d Dept 2009]). "[C]onstructive notice requires that the condition be visible and apparent and in existence for a sufficient period of time so as to allow [the property owners] an opportunity to take corrective action" (Williams v Kenyon, 63 AD3d 1423 [3d Dept 2009]). However, "a 'general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall" (Piacquadio, 84 NY2d at 969; see also Solazzo v New York City Tr. Auth., 6 NY3d 734 ).
Here, no evidence was offered to support the contention that the Thruway Authority was negligent. There is no proof that the Thruway Authority caused the condition or that it was in existence for a sufficient period of time so as to allow an opportunity to take corrective action. Absent some evidence that the Thruway Authority may have been negligent in maintaining its parking lot, the conclusory allegations in the proposed claim are not enough to establish a meritorious cause of action (Langner v State of New York, 65 AD3d 780, 783-784 [3d Dept 2009]). This factor weighs against the claimant.
As for the final factor to be considered, it does not appear that an alternative remedy is available.Insofar as the majority of factors, including the potential merit of the claim, do not weigh in claimant's favor, the Court will deny claimant's motion for leave to file and serve a late claim. Based on the foregoing, claimant's application for leave to serve and file a late claim is denied and defendant's cross motion to dismiss claim number 135226 is granted.
February 24, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. The motion record demonstrates the following with respect to the various attempts to serve a notice of intention: (1) An unverified notice of intention was served on the Attorney General by certified mail, return receipt requested, on March 5, 2020 and, according to defense counsel, rejected that same day; (2) A verified notice of intention was served on the Attorney General by Federal Express delivery service on March 12, 2020, and (3) a verified notice of intention was served on the Attorney General by certified mail, return receipt requested, on March 16, 2020 (see claimant's Exhibits 2, 3 and 4 annexed to Sise affirmation dated Dec. 14, 2020; see also Exhibits 1, 2 and 3 annexed to Sise's Supplemental Attorney Affirmation In Opposition, dated Jan. 5, 2021).