|Claimant(s):||In the Matter of the Claim of DONNA BRASSIL|
|Claimant short name:||BRASSIL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||Abrams, Fensterman, Fensterman, Eisman, Formato,
Ferrara, Wolf & Carone, LLP
By: Brian Thomas McCarthy, Esq.
|Defendant's attorney:||Lavin, Cedrone, Graver, Boyd & DiSipio
By: Timothy J. McHugh, Esq.
|Third-party defendant's attorney:|
|Signature date:||September 20, 2021|
|See also (multicaptioned case)|
Movant moves for permission to file and serve a late claim alleging a cause of action for negligence. Defendant opposes the motion. For the reasons that follow, the Court denies movant's motion for late claim relief.
The proposed claim alleges that, on November 7, 2019, movant was injured when she tripped on "an uneven road surface in the crosswalk area of Revere Road, to the east of the intersection of Port Washington Blvd and Revere Road" (Proposed Claim ¶ 2). The claim states that movant's injuries were caused by the State's "active negligence while re-paving the road" and that "[a]s a result of the condition of the partially paved road was [sic] created and maintained by the active negligence of the Defendant, [movant] fell on Revere Road . . ." (id.).
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 ). These factors are: (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; (5) whether the movant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 ). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the movant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
Before addressing the six statutory factors, the Court must determine whether movant's causes of action are timely under CPLR Article 2 (Court of Claims Act § 10 ). Movant's cause of action accrued on November 7, 2019 and the three year statute of limitations applicable to actions for personal injury applies (CPLR 214). As movant filed the instant motion on October 16, 2020, it is timely under CPLR 214.
Turning then to the first factor in the Court's late claim analysis, movant attributes the delay in seeking to file and serve the proposed claim to counsel for movant's belief that the Town of North Hempstead (Town) was liable to movant as the owner of Revere Road. It appears from the record that counsel for movant diligently pursued a claim against the Town by timely filing a notice of claim based on Town's ownership of Revere Road. By letter dated August 31, 2020 and through subsequent e-mail correspondence, a Deputy Town Attorney informed counsel for movant that it was his belief that the uneven pavement which allegedly caused movant's fall was due to work performed on Port Washington Boulevard (see Affidavit in Support, Exhibits 2 and 5), a State owned road. The instant late claim application was filed the same day that the Deputy Town Attorney confirmed by e-mail that he believed that the paving work was performed by the State or the State's contractor. As movant diligently sought late claim relief after learning of the Deputy Town Attorney's belief that the State may have performed the paving work that resulted in the uneven surface that caused movant's fall, the Court finds that the first factor weighs in movant's favor (see Weaver v State of New York, 112 AD2d 416, 418 [2d Dept 1985] [excusing movant's delay where movant moved "expeditiously" to file a late claim application after diligently investigating the ownership of the accident site]).
The next three factors--defendant's notice of the issues, opportunity to investigate, and prejudice--are interrelated and therefore frequently considered together. As to these three factors, movant argues only that the State had ample time to investigate the claim because movant is still well within the three year statute of limitations period applicable to personal injury actions. In response, defendant argues that it was unaware of the essential facts of the claim until it received notice of the claim in October 2020. Defendant further argues that it has not been able to investigate the claim in a timely fashion and that is it now prejudiced as the paving work has long been completed. Defendant also submits the affidavit of Elizabeth Chamakkala, New York State Department of Transportation (DOT) Regional Claims Officer for Region 10 (Affirmation in Opposition, Exhibit B), who avers that the State did not perform the natural gas line work that allegedly created the uneven pavement (Chamakkala Aff., ¶ 6). Rather, the State issued permits to Keyspan Gas East Energy Corp. d/b/a National Grid (National Grid) to perform the natural gas line work (id. at ¶ 4). Movant does not contend that National Grid gave notice to the State. As the State did not own Revere Road or perform the work either on Revere Road or Port Washington Blvd, there is no evidence that the State received notice of the claim prior to movant's filing the instant late claim application. The Court also finds that defendant did not have an opportunity to investigate the essential facts of the claim and that it would be prejudiced if compelled to defend the claim. Because the pavement work in question was in all likelihood completed at the time of the filing of movant's late claim application, defendant no longer has the opportunity to investigate the condition of the accident location, which would result in prejudice. Therefore, the Court finds that these three factors do not weigh in movant's favor.
As to the fifth factor, the Court finds that movant has another available remedy by filing an action in Supreme Court against National Grid--the entity which performed the work that resulted in the allegedly uneven pavement surface that purportedly caused movant's fall. Therefore, this factor does not weigh in movant's favor.
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).(1) However, a late claim application should not be granted where a claim is "legally deficient . . . [and] would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (Prusack v State of New York, 117 AD2d at 730).
"To establish a prima facie case of negligence in a premises liability claim asserting that injury resulted from a dangerous condition, [movant] must demonstrate by a preponderance of the credible evidence that: (1) [d]efendant owed [movant] a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) [d]efendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by [movant]" (Tucker v State of New York, UID No. 2012-040-008 [Ct Cl, McCarthy, J., Feb. 3, 2012], citing Solomon v City of New York, 66 NY2d 1026, 1027 ; see also Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept 2011]; Baez v Jovin III, LLC, 41 AD3d 751, 752 [2d Dept 2007]; DeLuke v City of Albany, 27 AD3d 925, 926 [3d Dept 2006]).
Defendant argues that movant failed to establish the merit of the proposed claim because Revere Road is not a State-owned road and the State was not responsible for the paving work on Port Washington Blvd which is alleged to have caused the uneven road surface on Revere Road. The affidavit of Elizabeth Chamakkala establishes that (1) Revere Road is not owned by the State of New York; (2) the State of New York merely issued permits to National Grid to perform work on Port Washington Boulevard, which intersects with Revere Road; and (3) the State did not perform any work that was described in the permits and did not created the condition that caused movant's accident (Chamakkala Aff. ¶¶ 3-7). Notably, movant does not dispute the averments set forth in the Chamakkala affidavit, but argues that the State is liable to movant because it approved and issued permits to National Grid.
Because it is undisputed that the State did not own Revere Road, it had no duty to maintain the roadway or crosswalk located there (Miller v County of Suffolk, 163 AD3d 954, 957 [2d Dept 2018] [a municipality cannot be held liable for failure to maintain a roadway it does not own or control]). Therefore, the State may only be held liable if it created the dangerous condition that caused movant's injury (Dibble v State of New York, UID No. 2019-054-095 [Ct Cl, Rivera, J., Dec. 19, 2019]). The Deputy Town Attorney corresponded by e-mail with counsel for movant and stated that he believed that the paving work that caused the uneven road surface may have been performed by the State or its contractor (see Affidavit in Support, Exhibit 5). However, the affidavit of Elizabeth Chamakkala submitted by defendant establishes that National Grid, not the State, performed the work that caused the allegedly uneven road surface where movant fell. The State did not perform the work nor did it enter into a contract for the work to be performed (Chamakkala Aff., ¶ 6).Thus, movant has failed to establish the appearance of merit of the claim insofar as movant failed to set forth sufficient facts establishing that movant's injuries were caused by some negligence "ascribable to the State" (Steenbuck v State of New York, 111 AD3d 819, 819 [2d Dept 2013]).
To the extent that movant seeks to hold the State liable based on the State's issuance of permits to National Grid, the issuance of permits alone is insufficient to establish liability absent a special duty between movant and the State. "Where, as here, a [government entity] engages in a quintessential governmental function such as the issuance of permits, even if it does so negligently, the [government entity] is immune from liability unless it owed 'a special duty to the injured person, in contrast to a general duty owed to the public' " (Bynum v Camp Bisco, LLC, 135 AD3d 1060, 1061 [3d Dept 2016], quoting McLean v City of New York, 12 NY3d 194, 199  [internal quotation marks and citation omitted]; see also Broncati v City of White Plains, 6 AD3d 476, 477-478 [2d Dept 2004] [no special duty where plaintiff alleged that defendant issued a permit in violation of the city's code]). Absent a special duty above and beyond the general duty owed to the public, the State cannot be held liable to movant for the negligent performance of a governmental function (see Metz v State of New York, 20 NY3d 175, 179 ; O'Connor v City of New York, 58 NY2d 184, 189 ). Here, movant has not alleged and the proposed claim does not establish that a special duty existed. Thus, movant has not established the appearance of merit of the proposed claim insofar as movant alleges that the State was negligent in issuing a permit to National Grid to perform natural gas line work in the vicinity of Revere Road.
As it would be futile to allow the filing of a claim that would be subject to dismissal, the Court finds that the final factor does not weigh in movant's favor (see Savino v State of New York, 199 AD2d at 254-255).
In consideration of the six factors enumerated in Court of Claims Act § 10 (6), movant's motion for late claim relief (M-96023) is DENIED.
September 20, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims
1. Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.