State's Motion: (1) to Dismiss based upon non-verification of Notice of Intent denied as State did not properly reject document; (2) for Summary Judgment denied as Court finds issues of fact exist.
|Claimant(s):||In the Matter of the Claim of ANNE-MARIE COOKE|
|Claimant short name:||COOKE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the State of New York as the proper defendant.|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||JOHN P. KINGSLEY, P.C.
By: John P. Kingsley, Esq.
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Christina M. Calabrese, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||June 11, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion: (1) to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks both subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant, is denied; and (2) for summary judgment, pursuant to CPLR 3212, dismissing the Claim is denied; and Claimant's Cross-Motion to serve and file a Claim late, pursuant to Court of Claims Act Section 10(6) is denied as moot.
This Claim, which was filed with the Clerk of the Court on February 25, 2016, alleges that, on June 30, 2015, at approximately 11:00 a.m., Claimant was at the Clermont State Historic Site in Germantown, New York (hereinafter, the "Park"), when Claimant fell on a pavement and gravel path while walking from the parking lot to the mansion as a result of the State's negligent maintenance and repair of the walkway (Claim, ¶¶ 2, 3, 5).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve her Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act § 10). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
In her affirmation submitted in support of the State's Motion, Defense counsel asserts that the Attorney General's office received an unverified "Notice of Claim" on September 22, 2015 (Affirmation of Christina Calabrese, Esq., Assistant Attorney General [hereinafter, "Calabrese Affirmation"], ¶ 5, and Ex. A attached thereto). As the "Notice of Claim" (hereinafter, the "Notice of Intention") did not contain the required verification language, Defendant rejected it and returned it to Claimant the same day on which it was received (id., and Ex. A attached thereto). Claimant served a Notice of Intention upon the Attorney General a second time, with a verification, on September 29, 2015 (id., and Ex. B attached thereto).(2) The Claim was subsequently served upon Defendant on March 7, 2016 (id., and Ex. O attached thereto).
The Claim accrued on June 30, 2015. Thus, the ninety (90) day period during which Claimant was required to initiate action, either by serving her Notice of Intention or serving and filing her Claim, expired on Monday, September 28, 2015. Thus, the questions raised are: (1) was the Notice of Intention served upon Defendant on September 22, 2015, unverified, and (2) if so, was the Claim properly rejected by Defendant? The second Notice of Intention was served upon Defendant on September 29, 2015, 91 days after the Claim accrued.
As stated above, the first Notice of Intention was served upon Defendant on September 22, 2015. By form letter dated the same date, Defendant notified Claimant that, pursuant to CPLR 3022, Defendant "is electing to treat the enclosed document received on today's date as a nullity and is hereby rejecting and returning it to you for the following reasons:". The letter then lists seven verification-related reasons for returning the document. Each reason contains a black line to be marked as the reason for returning a specific document. The line stating that the document "is unverified" was marked with an "x" on the copy Defense counsel retained (Calabrese Affirmation, ¶ 5, and Ex. A attached). However, in his affirmation submitted in opposition to Defendant's Motion, Claimant's counsel avers that, on the copy of the letter dated September 22, 2015 from Defense counsel, no line was marked with an "x" to signify the reason for the rejection of the Notice of Intention (Affirmation of John P. Kingsley, Esq. [hereinafter, "Kingsley Affirmation"], ¶¶ 6-8, and Ex. B attached). Furthermore, during a May 16, 2017 conference call, requested by Defense counsel, she advised the Court and Claimant's counsel that, after conferring with members of the Attorney General's staff, it was possible that the September 22, 2015 letter from Defense counsel to Claimant's counsel was mailed without the reason for the rejection of the Notice of Intention having been specified.
CPLR 3022 provides:
A defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do.
Court of Claims Act § 11(b) requires that notices of intention and claims "be verified in the same manner as a complaint in an action in the [S]upreme [C]ourt." The Court of Appeals has declared that the language means precisely what it says and, thus, "embraces CPLR 3022's remedy for lapses in verification" (Lepkowski v State of New York, 1 NY3d 201, 210 ). Thus, the sufficiency of Claimant's verification and Defendant's rejection at issue in this Claim must be evaluated in the same manner as they would be in any other court where practice is governed by the CPLR. "A defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification" (id. at 210).
The notice of the objection must state the defects relied upon with sufficient specificity that the party whose pleading is rejected has a reasonable opportunity to cure the defect (Steele v State of New York, 19 Misc 3d 766, 769 [Ct Cl 2008]; SLG Graybar, LLC v John Hannaway Law Offices, 182 Misc 2d 217, 222 [Civ Ct, New York County 1999]; Westchester Life v Westchester Mag. Co., 85 NYS2d 34 [Sup Ct, New York County 1948]). 84 NY Jur 2d, Pleading, § 62 provides: "If the aggrieved party chooses to treat the unverified pleading as a nullity, and timely serves the required notice on the adverse party, the notice must particularize the reasons why the verification is defective [(Matter of Miller v Board of Assessors, 91 NY2d 82 )] … Notices which state that the pleading does not comply with the CPLR are too general [(Treen Motors Corp. v Van Pelt, 106 Misc 357 [Sup Ct, Kings County 1919])]."
The Court concludes that the State's letter rejecting the Notice of Intention was ineffective, as it failed to specify the reasons or objections for the rejection (Gaffey v Shah, 131 AD3d 1006-1007 [2d Dept 2015]). "[W]hen the pleading is returned with a defective notice, the situation is the same as if the pleading had not been returned at all" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3022, C:3022:2). "Pleaders insisting upon strict compliance with the rules of practice must follow the same themselves" (Treen Motors Corp. v Van Pelt, supra at 361). Since the notice was insufficient, it had no effect. It is as if the Notice of Intention had not been returned (id.). As the Notice of Intention that was served on September 22, 2015 was timely, and the State's purported rejection was of no effect, the Motion to dismiss the Claim as untimely served is denied as the Notice of Intention was timely served and extended Claimant's time to serve and file the Claim to two years following accrual, i.e., until June 30, 2017. Here, the Claim was served and filed well before that date.
The Court next turns to Defendant's Motion seeking summary judgment dismissing the Claim pursuant to CPLR 3212. Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 ). Accordingly, while the State is not an insurer of those who enter upon its premises, and negligence cannot be inferred solely from the occurrence of an accident (see McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it does have a common-law duty to maintain its facilities "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 , quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir. 1973], cert denied 412 US 939 ; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 ).
In order to prevail on a motion for summary judgment, Defendant must show, prima facie, that it maintained its premises in a reasonably safe condition and that it did not create, or have actual or constructive notice, of the allegedly dangerous condition (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]; Cietek v Bountiful Bread of Stuyvesant Plaza, Inc., 74 AD3d 1628, 1629 [3d Dept 2010]). "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 [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ; Anderson v Skidmore Coll., 94 AD3d 1203, 1204 [3d Dept 2012]).
Whether a dangerous condition exists, so as to create liability depends upon the facts and circumstances of each case and is generally a question for the fact finder (Trincere v County of Suffolk, 90 NY2d 976, 977 ; Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]).
In support if its Motion, the State has submitted, inter alia, Assistant Attorney General Calabrese's Affirmation. Counsel states that Claimant testified at her deposition conducted on April 5, 2017 that, on June 30, 2015, she was walking on a path at the Park while carrying her youngest child in her arms (Calabrese Affirmation, ¶ 19, and Ex. J, pp. 28-30). Claimant further testified that she fell on the path behind the Information Center at the Park (id., ¶ 20, and Ex. J, pp. 45-50, see Exs. E-G). Claimant identified the area of the Information Center through the use of photographs (id., and Ex. J, p. 50, Exs. F & G). In the photograph submitted as Exhibit G, attached to the Calabrese Affirmation, one can see a larger view of the Information Center and, in the background, the area in which Claimant testified she fell. Claimant marked the area with a circle (id., ¶ 20, and Ex. J, pp. 51-52).
Claimant testified that she fell due to an uneven walking surface, which she concluded was because the Information Center did not have gutters on its roof, which caused rain to washout the path (Calabrese Affirmation, ¶ 22, and Ex. J, pp. 74-76 [page 75 is not attached to the Court's copy of the Motion papers]). Claimant noted that she did not observe the uneven area until after she fell and it was about one-half inch to one inch deep (id., and Ex. J, p. 76).
Joseph Murell, a maintenance employee at the Park for 22 years, the last 12 of which he has served as maintenance supervisor, testified at a deposition that he manages the grounds of the Park, and makes daily rounds of the Park (Calabrese Affirmation, ¶¶ 23, 24, and Ex. I attached, pp. 9-11). Mr. Murell also testified that there have been no complaints made in the past eight years either by the public, or Park employees, regarding any hazardous or unsafe conditions in the area from the Information Center parking lot to the Park mansion (id., ¶ 25, and Ex. I, pp. 19-20).
Mr. Murell testified that there have never been any issues with water runoff at the Information Center building. He said that there are gutters on the roof of the Information Center, contrary to Claimant's assertion (Calabrese Affirmation, ¶ 26, and Ex. I, p. 18). Mr. Murell testified he did an inspection on July 1, 2015, the day after Claimant's accident, and found no rut or disturbances in that area of the fall as described by Claimant in her deposition (id., ¶ 27, and Ex. I, pp. 30-31).
Susan Boudreau testified at a deposition that she is the historic site manager at the Park and has been for the last eight years (Calabrese Affirmation, ¶ 28, and Ex. M, pp. 9-10). She stated that the Park is inspected daily for safety (id., and Ex. M, p. 24). Ms. Boudreau could not recollect any complaints made regarding hazardous conditions on the pathways at the Park, nor have there been any falls other than Claimant's (id., and Ex. M, pp. 36-40).
On June 30, 2015, Ms. Boudreau was scheduled to meet with Claimant to discuss wedding planning (Calabrese Affirmation, ¶ 29, and Ex. M, pp. 27-28). The witness stated that Claimant told her that, as she was walking down the hill from the Visitor's Center toward the mansion, she fell. Ms. Boudreau further testified that Claimant told her she fell as she was coming down behind the Visitor's Center where it meets the adjoining path that comes from the parking lot (id., and Ex. M, p. 32). Ms. Boudreau also stated that Claimant described her accident as taking place near the bottom of the "hill," and there is only one hill (Ex. M, pp. 32-34).
Defendant asserts that the Claim should be dismissed as Claimant has "provided two different areas for her fall, one near the mansion[,] and one near the [I]nformation [C]enter, thus illustrating serious issues with her credibility and the credibility of the [C]laim" (Calabrese Affirmation, ¶ 32). Defendant also asserts that Claimant will be unable to demonstrate that there was any dangerous condition, that the State had actual or constructive notice of the condition, or that Defendant failed to act reasonably to remedy it (see Gordon v American Museum of Natural History, supra).
Based upon Defendant's submission, the Court concludes that Defendant did not make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Center, supra). Defendant's submission shows that a question of fact exists as to where Claimant's accident occurred. Claimant testified that she fell on the path between the parking lot and the Information Center. Ms. Boudreau testified that Claimant told her that Claimant fell while walking from the Information Center to the mansion.
Further, the Court finds that a question of fact exists as to whether Defendant maintained its premises in a reasonably safe condition and whether it did not create, or have actual or constructive notice of, the allegedly dangerous condition. Claimant's counsel in his Affidavit in Opposition to Defendant's Motion, asserts that Ms. Boudreau testified at her deposition that gravel paths require constant maintenance and update, and also stated that records are not always kept unless gravel is ordered, or it is entered in the maintenance supervisor's log. She explained that a maintenance work request is not generated if the job is something done by Park staff (Kingsley Affirmation, ¶ 47, and Ex. L, pp. 51, 55-56, attached thereto).
Thus, the Court concludes that questions of fact exist as to where Claimant fell and whether Defendant created the condition, or had actual or constructive notice of the condition, prior to the accident.
The Court finds and concludes, based upon the submissions of the parties, that questions of fact exist which preclude granting Defendant summary judgment dismissing the Claim. The Court concludes that Defendant has failed to make a showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Thus, Defendant's Motion for summary judgment is denied.
Claimant's Cross-Motion to serve and file a Claim late, pursuant to Court of Claims Act Section 10(6), is denied as moot.
June 11, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion to dismiss the Claim pursuant to CPLR 3211, and for summary judgment, pursuant to CPLR 3212, dismissing the Claim, and Claimant's Cross-Motion to serve and file a Claim late, pursuant to Court of Claims Act § 10(6):
Notice of Motion, Affirmation in Support,
& Exhibits attached 1
Notice of Cross-Motion, Affirmation in Support,
Affirmation in Opposition & Exhibits attached 2
Affirmation in Opposition to Cross-Motion 3
Filed Papers: Claim, Answer
2. Both documents were labeled "Notice of Claim" (see Calabrese Affirmation, Exs. A & B). Defendant asserts that it accepted each document as a claim and responded to same (see id., Exs. D & K). Claimant then requested that the "Notice of Claim" be treated as a "Notice of Intention" (see id., Ex. N). Defendant did not object (see id., Ex. L). Claimant then filed the Claim (see id., Ex. O). Defendant responded (see id., Ex. H). Defendant further asserts that Exhibits H and K were withdrawn on consent, leaving Exhibit D as State's sole responsive pleading in this case.