Claim for personal injury sustained when claimant slipped on ice at correctional facility. Defendant's untimely papers accepted in the interest of judicial economy. Defendant did not sufficiently demonstrate that motion for summary judgment was premature, but claimant failed to meet his prima facie burden because he did not demonstrate that defendant had prior notice of the allegedly recurring ice condition.
|Claimant short name:||BLOOM|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ADAM BLOOM, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 31, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for a back injury he allegedly sustained when he slipped on an icy walkway at Green Haven Correctional Facility (CF). Claimant moves for summary judgment. Defendant has submitted opposition to the motion.
As a preliminary matter, the procedural questions of whether the Court may and will consider defendant's untimely opposition to the motion must be addressed.(1)
Counsel for defendant maintains that its submission was tardy because "it appears that while my office received a calendar letter from the [Court of Claims] Motion Unit related to this case, it was not logged into our deadline/calendaring system as it should have been" (12/18/17 Gavin Correspondence). Defense counsel further maintains that its "failure to respond to the Motion was an unintentional oversight and not a dilatory tactic" and that "[a] response was submitted as soon as it was realized that the Motion was not listed on the calendar" (id.). In requesting that the Court consider defendant's late submission, defendant argues that "[t]he delay in this matter was not lengthy, does not unduly prejudice the claimant, and constitutes law office failure" (id.). Claimant argues in reply that defendant has not shown good cause for the delay, that the Court should sanction defendant's failure to exercise due diligence by refusing to consider the papers, and that defendant's late submission constitutes "new arguments" that should not be considered (see 1/3/18 Bloom Reply).(2)
CPLR 2004 provides the court with discretion to "extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." Law office failure may serve as a "viable basis for good cause under CPLR 2004" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2004, at 325, citing Tewari v Tsoutsouras, 75 NY2d 1 ; see also Brusco v Davis-Klages, 302 AD2d 674, 674 [3d Dept 2003]). " 'Law office failure' has been interpreted as involving misplaced files, overlooked time periods, preoccupied attorneys, complexity of litigation and the like" (Morrocoy Marina v Altengarten, 93 AD2d 270, 272 [2d Dept 1983]). When considering whether to extend a time period pursuant to CPLR 2004, "the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and if so, the presence or absence of an affidavit of merit. . ." (Tewari, 75 NY2d at 12).
Here, the Court disagrees with defendant's assertion that the delay was not lengthy, as a delay of nearly six weeks in responding to a motion cannot and should not be considered trivial. Defendant argues that claimant has not been prejudiced by the delay, claimant does not assert any, and the Court can discern none. Defendant's proffered explanation that the delay was caused by an unintentional failure to calendar the motion, while regrettable, does not appear to be unreasonable, and the law recognizes that a lack of diligence through law office failure may serve as a basis to excuse default and extend deadlines.(3) Here, however, not only was defendant clearly in default on the motion, but counsel's decision to submit and serve its tardy opposition without first requesting permission to do so disregarded and disrespected the rules of proper procedure, claimant and the Court, and is not easily overlooked. Moreover, the tardy submission was unaccompanied by an affidavit of merit. On the other hand, claimant's failure to submit a copy of the claim in support of his motion as required by CPLR 3212 (b) would be fatal to his motion, but that omission was cured by defendant's submission of the claim in support of its opposition to the motion, so the Court's refusal to consider defendant's tardy submission would result in summary denial of claimant's motion. That, in turn, would likely result in additional motion practice to bring claimant's motion before the Court again, and thus, judicial economy would be greatly served by granting defendant's application to consider its untimely papers and hearing claimant's motion on its merits notwithstanding defense counsel's disregard of proper procedure. Therefore, the Court will - in circumstances of this matter - extend the return date nunc pro tunc and consider defendant's submission.
Defendant initially opposes claimant's motion for summary judgment because, as noted above, claimant has not supported his motion with a copy of the pleadings (see Greene v Wood, 6 AD3d 976 [3d Dept 2004]; Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005]). While such an omission generally requires summary denial of the motion without prejudice to renewal of the motion (see Wider v Heller, 24 AD3d 433, 434 [2d Dept 2005]; Welton v Drobnicki, 298 AD2d 757 [3d Dept 2002]; see also Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005], the omission of a pleading in support of a motion for summary judgment may be overlooked where the record is "sufficiently complete" (see Stiber v Cotrone, 153 AD2d 1006, 1007 [3d Dept 1989] lv denied 75 NY2d 703 ; see also Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept 2005] lv denied 5 NY3d 708 ; Greene v Wood, 6 AD3d 976, 977 [3d Dept 2004]). As noted above, claimant's omission has been rectified by defendant's submission of a copy of the claim (see Gavin Affirmation, Exhibit B), and thus, the record is sufficiently complete for consideration of claimant's motion for summary judgment.
Defendant summarily states that no discovery has been conducted, but offers no collaboration on that statement (see Gavin Affirmation, ¶ 6). The claim was filed on July 26, 2017, and claimant's motion was filed on September 5, 2017, less than six weeks thereafter. "CPLR 3212 (f) permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion exist but cannot be stated. This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Wesolowski v St. Francis Hosp., 108 AD3d 525, 526 [2d Dept 2013] [internal quotations and citations omitted] [emphasis added]). While it would appear manifest that defendant did not have a reasonable opportunity to conduct discovery prior to the motion inasmuch as the motion was filed a mere 41 days after the claim was filed, defendant has not argued that the motion was premature, nor has it demonstrated "that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion are exclusively within the knowledge and control of [claimant]" (Deleg v Vinci, 82 AD3d 1146, 1146 [2d Dept 2011]; see also Friedlander Org., LLC v Akintayo Abimbola Ayorinde, 94 AD3d 693, 694 [2d Dept 2012]). Accordingly, to the extent that defendant is arguing that the motion is premature, it has not demonstrated that the motion should be denied on that ground.
Turning to the merits of the motion, the party moving for summary judgment bears the initial burden of establishing his right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ). It is well established that:
"[o]n a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 ). Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ) and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' (id.)"
(Vega v Restani Constr. Corp., 18 NY3d 499, 503 ). A movant seeking summary judgment on a claim arising from an alleged defect on State property must demonstrate prima facie that: (1) that a dangerous condition existed; (2) that the State either created this dangerous condition or had actual or constructive notice of the condition and failed to correct the problem within a reasonable period of time; and (3) that the dangerous condition was a proximate cause of claimant's accident (see Gordon v American Museum of Natural History, 67 NY2d 836 ; Dapp v Larson, 240 AD2d 918 [3d Dept 1997]; see also Goldman v Waldbaum, Inc., 297 AD2d 277 [2d Dept 2002]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d at 837; Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1005-1006 [3d Dept 2005]; Rinaldi v State of New York, 49 AD2d 361, 363 [3d Dept 1975]), or claimant "may establish constructive notice by demonstrating a recurring dangerous condition in the area of the slip and fall that was routinely left unaddressed" (Solazzo v New York City Tr. Auth., 21 AD3d 735, 736 [1st Dept 2005], affd 6 NY3d 734 ).
Claimant submits his affidavit in which he avers that he was walking "in the East side 'dirt' yard and slipped on ice that was present on the walkway and injured his back" (Bloom Affidavit, ¶ 7), on January 24, 2017. Claimant avers that "[t]he icy and slippery walkway is and has been a safety issue for a prolonged period of time and the Defendant had constructive notice of the safety issue via numerous grievances that were filed yet ignored" and that the failure of defendant to address the recurring condition "is substantiated by Defendant's own documented accident reports generated by others that have slipped and fallen prior to my own accident" (id., ¶¶ 17, 18). Claimant submits the affidavits of four individuals who personally witnessed claimant slip and fall on ice located on the walkway (see id., Exhibits 8-11). Two of the witnesses averred that "[a]s [claimant's] accident happened at 8;30 [sic] p.m., there was no reason the yard officers had not cleared away the potential safety hazard or even made an attempt to salt/sand the area to prevent inmates from falling or injuring themselves (id., Exhibit 8 [Howard Affidavit]; Exhibit 9 [Degodea Affidavit). The other two witnesses averred that:
"The dangerous icy condition was a recurring problem that the yard officers never addressed in spite of numerous complaints and grievances being filed about the problem. There was absolutely no reason why the Officers responsible for the safety conditions could not have salted or sanded the walkways as they had all day to accomplish this small safety measure. Any reasonable minded person can conclude that the Officer's [sic] responsible for the inmates in the yard continually act with negligence by failing to prevent dangerous conditions that they have been made aware of time after time to no avail."
(id., Exhibits 10 [Novak Affidavit], 11 [Mills Affidavit] [emphasis in original]). Defendant argues that claimant has failed to meet his burden of proof and that there "remains a significant issue of fact which has not been established: whether defendant had notice of the dangerous condition" (Gavin Affirmation, ¶ 7).
Claimant has not sufficiently shown that defendant had constructive notice of the dangerous condition that caused his fall. As an initial matter, none of the affidavits establish on their face that the ice that claimant slipped upon was visible and apparent contemporaneously to claimant's accident (see Gordon v American Museum of Natural History, 67 NY2d at 837). To the extent that claimant attempts to establish that the ice on which he slipped was a recurring condition, he is "required to show by specific factual references that defendant had knowledge of the allegedly recurring condition" Carlos v New Rochelle Mun. Hous. Auth, 516 [2d Dept 1999]). "Conclusory affidavits 'which fail to identify how long the condition existed, or the identity of the persons to whom notice of the condition was allegedly given, and when and how it was given' are insufficient" (Stone v Long Is. Jewish Med Ctr., 302 AD2d 376, 377 [2d Dept 2003], quoting Carlos v New Rochelle Mun. Hous. Auth., 262 AD2d at 515). Although claimant avers that icy walkway had been a "safety issue for a prolonged period of time," that defendant had notice of the dangerous condition "via numerous grievances that were filed" and by "documented accident reports generated by others that have slipped and fallen prior" (Bloom Affidavit, ¶¶ 17, 18), and his witnesses aver that the recurring condition was the subject of "numerous complaints and grievances" (id., Exhibits 10, 11), these affidavits do not identify how long the alleged recurring condition existed or when notice was given to defendant's agents. Absent from claimant's submission are documents such as prior grievances and/or accident reports that may demonstrate how long the recurring condition existed and when defendant was made aware of it. Thus, claimant has failed to sustain his prima facie burden of demonstrating that defendant had notice of the condition that caused his fall, and the motion must be denied.
Accordingly, it is
ORDERED, that claimant's motion number M-91010 is DENIED.
January 31, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 130033, filed July 26, 2017;
(2) Verified Answer, filed June 26, 2017;
(3) Notice of Motion, dated August 25, 2017;
(4) Affidavit of Adam Bloom in Support of Motion for Summary Judgment, sworn to August 28,
2017, with Exhibits 1-11;
(5) Correspondence of Eileen F. Fazzone, Chief Clerk of the Court of Claims, dated September 6, 2017;
(6) Affirmation of Elizabeth A. Gavin, AAG, in Opposition to Motion for Summary Judgment,
dated November 14, 2017, with Exhibits A-B;
(7) Affidavit of Adam Bloom in Support of Reply to Defendant's Opposition for Summary
Judgment, sworn to December 4, 2017;
(8) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, dated December 7, 2017;
(9) Correspondence of Elizabeth A. Gavin, AAG, dated December 18, 2017;
(10) Reply and Notice of Motion Pursuant to CPLR § 2214 of Adam Bloom, sworn to January 3,
(11) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, dated January 4, 2018;
(12) Correspondence of Elizabeth A. Gavin, AAG, dated January 10, 2018, with Affidavit of
Service of Susan Martinelli, sworn to January 8, 2018.
1. Defendant's opposition to the motion was served nearly six weeks after the return date with neither an explanation for the delay nor a request for an adjournment nunc pro tunc. Upon inquiry by the Court and with its permission, defendant filed papers explaining the circumstances behind the untimely filing and requesting that the Court consider the late submission, which claimant opposes.
2. Claimant's reliance James v Nestor (120 AD2d 442 [1st Dept 1986]) for the proposition that defendant's submission constitutes "new arguments" is misplaced as the Court held that facts not before the Court on a prior motion in a motion to renew is not a ground for reargument.
3. Claimant's reliance on Star Indus., Inc. v Innovative Beverages, Inc. (16 Misc3d 1141 [A] [Sup Ct, Nassau County 2007]) is misplaced, as that decision states that a movant's failure to exercise due diligence in a motion may not utilize a motion to renew under CPLR 2221 (e) to remedy deficiencies in prior moving papers.