Motion for late claim relief granted in part; factors weighed in favor of granting motion with respect to only one of three alleged incidents of injury-producing negligence.
|Claimant short name:||JACKSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||DELL & DEAN, PLLC
By: Michael D. Schultz, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Thomas R. Monjeau, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 6, 2018|
|See also (multicaptioned case)|
Claimant moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that on December 2, 2014 claimant slipped and fell on cleaning solution on the basketball court at Shawangunk Correctional Facility (CF), suffering various physical injuries, including one to his left knee for which he underwent knee surgery on September 3, 2014. The proposed claim alleges that after claimant's post-operative return to Shawanguck CF, defendant's agents refused to move his cell to a lower tier, which required claimant to ambulate up and down stairs, resulting in further wear and tear to his injured left knee. The proposed claim also alleges that claimant sustained further injury when he slipped and fell on a wet spot on stairs on December 15, 2014. The proposed claim asserts three separate bases of liability arising from the alleged negligence of defendant's agents: first, that they were negligent in permitting cleaning solution to remain on the basketball court; second, that they negligently refused to move his cell to a lower tier after he sustained his left knee injury; and third, that they negligently permitted a wet spot to exist on the stairs. Defendant opposes the motion for late claim relief.
In deciding a motion to file a late claim, Court of Claims Act § 10 (6) requires the Court to consider, among other 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." The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court.
Review of the events preceding this motion follows. On January 25, 2015, claimant served a timely notice of intention to file a claim that alleged that on December 2, 2014 claimant slipped and fell on the basketball court at Shawangunk CF and injured his knee, that he was subsequently housed in a cell in the top gallery and was forced to ambulate on his injured knee, and that on December 15, 2014 he slipped on water on steps and fell, suffering other injuries and reinjuring his knee (see Monjeau Affirmation, ¶¶ 2 , 17; Schultz Affirmation, ¶ 35, Exhibit B). Claimant thereafter filed the claim on December 2, 2016, the last permissible day to file a claim for the December 2, 2014 slip and fall (see Court of Claims Act § 10 ), and the claim was assigned claim number 128882. Claimant's counsel asserts that he timely filed the claim, and that he "had every intention" of timely serving the claim on the Attorney General, but due to a clerical error, the claim was not served on the Attorney General (see Schultz Affirmation, ¶ 38). In accordance with this Court's practice, when the filed claim was assigned to the Court and the file contained neither an affidavit of service of the claim upon the Attorney General or a filed answer to the claim, an order to show cause directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction due to absence of service of the claim upon the Attorney General as required by Court of Claims Act § 11 (a) was issued (see id. Exhibit E). Claimant submitted no response to the order to show cause, and defendant's submission demonstrated that the claim had not been served upon the Attorney General. Thus, by decision and order dated March 23, 2017, claim number 128882 was dismissed for lack of jurisdiction (see id. Exhibit F). The instant motion for late claim relief was filed on November 30, 2017, more than six months after the claim was dismissed, and only two days prior to the last date on which the motion would be permitted for the December 2, 2014 slip and fall (see CPLR 214  [3-year statute of limitations for claim for personal injury]).(1)
Claimant pro se timely served a notice of intention upon the Attorney General, but did not thereafter timely serve the claim within two years of its accrual date (see Court of Claims Act § 10 ). To the extent that claimant argues that an excuse must be offered for only the 90-day period within which claimant was required to file and serve a claim or serve a notice of intention, or that having timely served a notice of intention, he does not need to offer an excuse, the Court does not agree (cf. Plate v State, 92 Misc 2d, 1033, 1040 [Ct Cl 1978]; see also Walach v State, 91 Misc2d 167 [Ct Cl 1977] affd on op'n below 69 AD2d 1015 [4th Dept 1979]). Simply stated, having served a timely notice of intention and thereafter having not timely filed and served the Attorney General within two years, claimant must make some showing that the delay in filing and serving the claim was excusable within the two year period, lest he concede that there was no excuse. In this regard, claimant only asserts that the failure to serve the Attorney General with the claim was due to law office failure, which is not an acceptable excuse in support of a late claim motion (see Spickerman v State of New York, 85 AD2d 60, 61 [3d Dept 1982]). Thus, this factor weighs against granting the motion.
Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and 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 are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Although claimant's notice of intention advised defendant of its alleged failure to move claimant to a lower tier in the facility, it did not provide adequate notice to defendant of the essential facts of claimant's falls on December 2 and December 15, 2014. Specifically, the notice of intention did not allege that claimant's fall while playing basketball on December 2, 2014 was caused by cleaning solution or any other substance on the surface of the gym floor. Claimant's assertion that his use of the phrase "slipped and fell" provided defendant with an opportunity to investigate (see Schultz Reply Affirmation, ¶¶ 22-26) is not - without more - a sufficient assertion that defendant had negligently created or failed to remedy a defective condition that caused the fall (see Grumet v State of New York, 256 AD2d 441 [2d Dept 1998]). With regard to claimant's fall on December 14, 2014, the notice of intention alleges that claimant slipped on water on stairs, but it is silent as to the location of the alleged fall, thus providing defendant with inadequate notice of the essential facts of that alleged incident (see Sega v State of New York, 246 AD2d 753 [3d Dept 1998], lv denied 92 NY2d 805 ). Claimant's status as a pro se litigant when drafting the notice of intention did not relieve him of the duty to adequately notify defendant of the nature of his claims. Defendant was first notified that its potential liability arose from the presence of a foreign substance on the gym floor when it was served with the instant motion nearly three years after the incident, and it contends that it was deprived of an opportunity to investigate the allegations and that it will be substantially prejudiced by this extensive delay (see Monjeau Affirmation, ¶¶ 2 , ). Given the transient nature of the alleged dangerous condition that allegedly caused the December 2, 2014 fall - a puddle of cleaning solution - and the lapse of time since the incident, the Court finds that the intertwined factors of notice of the relevant facts, opportunity to investigate the incident, and substantial prejudice from the granting of late claim relief weigh against granting the motion as to the incident on December 2, 2014. Further, the complete lack of notice of any location of the December 15, 2014 fall hampered defendant's ability to investigate the incident. Thus, while the interrelated factors weigh in favor of granting the motion as to the allegation that defendant was negligent in refusing to move claimant to a lower tier, they weigh against granting the motion with regard to the December 2 and December 15, 2014 incidents.
The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he will prevail on his claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., supra at 11).
Here, the incident on December 2, 2014 - the injury-producing event on the basketball court - has the appearance of merit as required by Court of Claims 10 (6). Further, the allegation Defendant's agents were negligent and therefore breached a duty owed to claimant in refusing to move him to a lower tier and requiring him to ambulate on stairs, resulting in wear and tear on his knee, also has the appearance of merit. However, the allegation regarding his December 15, 2014 fall on the stairs is legally defective because the proposed claim does not plead the location of the stairs, and is therefore jurisdictionally defective because the proposed pleading does not comply with Court of Claims Act § 11 (b) (see Sega v State of New York, supra). Thus, the appearance of merit factor weighs in favor of granting the motion with regard to the December 2, 2014 fall and the allegations that defendant's agents were negligent in housing him on a top tier, but this factor weighs against granting the motion with regard to the December 15, 2014 fall.
Claimant asserts that he has no alternative legal remedy, and defendant does not argue otherwise. Thus, this factor weighs in favor of granting the motion.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds as follows. First, with regard to the December 2, 2014 slip and fall, although that aspect of the claim has the appearance of merit within the meaning of the statute, defendant did not have notice of the essential facts of the claim, did not have an opportunity to adequately investigate the claim and would suffer substantial prejudice if claimant were granted permission to file and serve the untimely claim. With regard to the December 14, 2014 fall on stairs, five of the six factors, including the critical factor of the appearance of merit, weigh against the granting the motion for late claim relief with regard to that incident. However, five of the six factors, including the appearance of merit, weigh in favor of granting the motion with regard to allegations that defendant was negligent in refusing to move claimant to a lower tier following his injuries and that he suffered wear and tear to his knee injury as a result. Thus, claimant will be permitted to file a late claim that alleges only that defendant's agents were negligent in refusing to move claimant to a lower tier following his December 2, 2014 surgery and that the negligence resulted in wear and tear to his knee injury. Accordingly, it is
ORDERED, that motion number M-91499 is GRANTED IN PART, to the extent that claimant is granted permission to file a late claim as provided for in this decision and order; and it is further
ORDERED, that claimant is directed to file and serve a claim in accordance with the requirements of sections 11 (a) (i) and 11-a of the Court of Claims Act, no later than thirty (30) days after the date of filing of this Decision and Order.
April 6, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 128882, filed December 2, 2016;
(2) Notice of Motion, dated November 30, 2017;
(3) Affirmation of Michael D. Schultz, Esq., in Support of Motion for Late Claim Relief,
dated November 30, 2017, with Exhibits A-G;
(4) Affirmation of Thomas R. Monjeau, AAG in Opposition, dated January 4, 2018, with
1. A motion pursuant to Court of Claims Act §10 (6) must be filed "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" (Court of Claims Act § 10 ; see also Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806  [untimely filing of motion is a fatal jurisdictional defect]). Defendant's contention that the motion is untimely with respect to any cause of action sounding in medical negligence or malpractice is not pertinent, as the proposed claim is clearly lacking any such cause(s) of action (see Monjeau Affirmation, ¶ 17; Schultz Affirmation, Exhibit A).