Movant's late claim application denied, no reasonable excuse for delay.
|Claimant(s):||KELLY J. OBER|
|Claimant short name:||OBER|
|Footnote (claimant name) :|
|Defendant(s):||CITY UNIVERSITY OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||LAW FIRM OF DAVIDOFF & ASSOCIATES
By: Mark Peter Getzoni, Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Nicole M. Procida, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 15, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-3 were read and considered by the Court on movant's late claim application and oral argument was heard on February 1, 2018:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Defendant's Affirmation in Opposition...................................................................2
The proposed claim(1) alleges that on March 17, 2017, at approximately 5:45 p.m., at the Queens Campus of the City University of New York (CUNY) at 65-30 Kissena Blvd., Queens, New York, on a paved area leading to lot 3, the parking lot closest to 153rd Street and Reeves Avenue, movant tripped and fell due to a defect in the pavement (Movant's Ex. A). The alleged defect is described as a broken, depressed, uneven and sloped area of pavement. The proposed claim further alleges that movant sustained a fractured right ankle and injuries to her left knee and her shoulders.
Four photographs of the alleged defect were attached to the proposed claim. Two additional photographs were submitted with movant's motion papers as Exhibit D. All of the photographs, however, were not discernible; therefore the Court requested that movant provide the Court and defendant with clear copies of the photographs. At oral argument, six photographs were offered by movant and were marked by the Court as Court Exhibits 1 through 6.
In considering a late claim application, Court of Claims Act § 10 (6) requires that the Court consider, among other relevant factors: (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 claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ).
In addressing the reasonableness of the delay, counsel for movant argues that it was "not common knowledge by the bar" to know that CUNY is a 4-year "senior college" under Education Law § 6202  and therefore subject to the exclusive jurisdiction of the Court of Claims under Education Law § 6224 . Movant's counsel also argues that his delay was a "predicable by-product" of CUNY's protocol in failing to inform litigants of the exclusive subject matter jurisdiction for claims against CUNY to be brought in the Court of Claims (Movant's Supporting Affirmation ¶¶ 16, 20) and that such information was "tacitly" hidden by CUNY (Movant's Reply ¶ 6). These arguments are neither persuasive nor well received by the Court. Contrary to the arguments advanced by movant's counsel, it was not incumbent upon CUNY to educate movant's counsel on the issue of subject matter jurisdiction regarding a claim to be brought on behalf of his client. At oral argument, movant's counsel acknowledged that the information regarding the Court of Claims' subject matter jurisdiction over claims against CUNY was readily ascertainable in the Education Law and case law dating back to 1998 (Gelin v Lehman Coll., 254 AD2d 119 [1st Dept 1998]).
The case law is clear that ignorance of the law is not a reasonable excuse for delay with regard to a late claim application (see Borawski v State of New York, 128 AD3d 628, 629 [2d Dept 2015] ["ignorance of the law was not excusable"]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854  [error in filing claim against wrong party was not excusable delay]; Gatti v State of New York, 90 AD2d 840 [2d Dept 1982] [mistaken belief that the town and not the state owned the road was not a reasonable excuse for delay]). Here, the Court finds that movant's counsel has failed to provide a reasonable excuse for the delay.
The most significant factor to be considered on a late claim application is whether the proposed claim has an appearance of merit. Merely submitting photographs of an alleged accident site does not establish an appearance of merit of a proposed claim (see Matter of Gallagher v State of New York, 236 AD2d 400 [2d Dept 1997]). At oral argument, defense counsel argued that the depictions offered by movant show an alleged defect which appears to be trivial and de minimis. In addressing defense counsels arguments, without reaching the issue of whether the alleged defect was trivial or de minimis, the Court notes that the photographs submitted by movant fail to include either a ruler or other form of reference to indicate that the dimensions of the alleged defect. Thus, the Court finds that the photographs submitted in this matter, without more, are of little probative value in establishing an appearance of merit of the proposed claim. Notably, movant did not submit a witness statement, an incident report or an accident report along with the photographs. Additionally, despite the alleged injuries sustained by movant, which include a broken ankle, movant failed to submit any medical or hospital records or other proof that movant was treated for the alleged injuries as a result of the subject accident.
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977] ). Based upon the Court's thorough review of movant's submission, the Court finds that movant has failed to meet her burden of establishing an appearance of merit of her proposed claim.
The next factors considered by the Court are whether defendant had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim. In early May of 2017, CUNY received a Notice of Claim and assigned it a claim number (Movant's Ex. C). Thus, CUNY had timely notice and an opportunity to investigate the circumstances underlying the claim and therefore was not substantially prejudiced by movant's delay. Finally, it appears that movant does not have another available remedy.
The Court has considered all the factors and finds that movant's failure to establish a reasonable excuse for the delay and movant's failure to establish an appearance of merit of her claim warrant denial of her application to serve and file a late claim (see Matter of Best v State of New York, 42 AD3d 699 [3d Dept 2007] ][late claim application properly denied where there was no reasonable excuse and claim was of questionable merit]; Morris v Doe, 104 AD3d 921 [2d Dept 2013] [late claim application denied where no reasonable excuse and no appearance of merit]; Matter of Brown v State of New York, 6 AD3d 756 [3d Dept 2004] [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]).
Accordingly, upon weighing all the factors, the Court DENIES movant's application for leave to serve and file a late claim.
February 15, 2018
White Plains, New York
Judge of the Court of Claims
1. Movant's Exhibit A is denominated "Notice of Intention to File a Claim." Since there is no authority for leave to serve a late Notice of Intention to File a Claim, the Court has deemed Exhibit A to be more properly denominated a proposed claim.