Defendant's Motion to Dismiss Claim as untimely on the basis Claimant did not comply with the Court's Order granting her permission to file a Claim late, pursuant to CCA § 10(6), denied.
|Claimant(s):||JENNIFER CALVERLEY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DALE SCOTT CALVERLEY|
|Claimant short name:||CALVERLEY|
|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:||McLAUGHLIN & STERN, LLP
By: Thomas Scappaticci, Jr., Esq.
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Sean B. Virkler, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||November 21, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's pre-Answer Motion to dismiss the Claim, pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks subject matter jurisdiction over the Claim, and personal jurisdiction over Defendant as a result of Claimant, Jennifer Calverley's, failure to timely serve her Claim, and because she did not comply with the Court's directives in the Court's Decision and Order (hereinafter, "Decision") granting Claimant's Motion for permission to file a Claim late (Calverley v State of New York, UID No. 2018-040-030 [Ct Cl, McCarthy, J., Apr. 23, 2018]), is denied.
By Decision, as set forth above, this Court granted Claimant's Motion for permission to serve and file a late Claim pursuant to Court of Claims Act § 10(6). In its Decision, the Court set forth the facts as asserted in the proposed Claim, as well as the information set forth in the motion papers and reply papers (Calverley v State of New York, supra, pp. 1-3). Those pertinent facts are that, on August 17, 2015, Dale Scott Calverley (hereinafter, "Decedent"), Claimant, his wife, and their three children were on a camping vacation from Massachusetts. The family visited the Adirondack Museum in Blue Mountain Lake, New York. Decedent spoke with an Adirondack Museum employee and inquired about a recreational swimming area in the Long Lake vicinity and the employee recommended the swimming areas located at the base of the falls at Buttermilk Falls (hereinafter, "The Falls"), located on the Raquette River in the Town of Long Lake, New York. Claimant avers that there were no posted signs at The Falls that provided safety instructions or warnings concerning the use of The Falls, or posted signs designating a specific recreational use for The Falls. It was asserted that there were no signs prohibiting recreational swimming at The Falls or posted warnings about a dangerous condition at The Falls, including an underwater current. The family walked from a parking lot to The Falls for the purpose of swimming in the swimming areas located at the base of The Falls. When they arrived, people were swimming at the base of The Falls. It was asserted that the water surface in the swimming area located at the base of The Falls appeared smooth and calm, and there were no visible currents at the water surface. Decedent and the three children entered the water and swam in the swimming area located at the base of The Falls. Decedent was an experienced swimmer and a former ocean lifeguard. After approximately twenty (20) minutes in the water, Decedent and his son, Jack, swam to a shallower swimming area located at the base of The Falls where the surface of the swimming area appeared smooth and calm, and there were no visible currents at the surface of the water in that area. While swimming to the shallower swimming area, Claimant observed Decedent having difficulty swimming, and it appeared that he was stuck in one place and was having difficulty moving from that location. She observed another swimmer take Jack from Decedent and take Jack to safety, and she saw Decedent go under the water. Decedent appeared to be pulled in a downward manner, under the water. Ms. Calverley next saw him floating at the surface of the water, face down and motionless. Several people took Decedent from the water and administered CPR. However, they were unable to resuscitate Decedent.
The proposed Claim asserted that Decedent drowned because of the negligence, carelessness, and recklessness of the State and its employees in its development, use, maintenance, and management of The Falls, by allowing dangerous conditions to exist at The Falls, and by failing to warn visitors of the existence of the dangerous conditions there (Proposed Claim, ¶ 7).
On August 2, 2016, the Middlesex Probate and Family Court of the Commonwealth of Massachusetts appointed Claimant the personal representative of Decedent's Estate.
In deciding the Motion, the Court found that the statute of limitations had not yet expired when the Motion was served and filed, and that the preponderance of factors considered weighed in Movant's favor. The Court stated:
[W]ithin forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the office of the Clerk of the Court her proposed Claim against the State of New York, including the information about the alleged latent condition of the water by The Falls which caused Decedent to drown, and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested.
(Calverley v State of New York, supra, p. 10).
Defendant asserts that the Claim should be dismissed because the Claim that Claimant filed (Ex. C attached to the Affirmation of Sean B. Virkler, Esq., Assistant Attorney General [hereinafter, "Virkler Affirmation"]) is untimely, and also because it is different from the proposed Claim and, at this point, Claimant's time to file and serve the proposed Claim has expired (Virkler Affirmation, ¶ 3).
In opposition to Defendant's Motion, Claimant asserts that the Decision directed Claimant to include factual information to her late Claim filed with the Court of Claims concerning "the alleged latent condition of the water by The Falls which caused Decedent to drown," which can fairly and reasonably be read as directing Claimant to add the facts included within its motion papers that were not in the proposed Claim included as part of its motion papers. Claimant asserts she complied with this direction (Affirmation of Thomas Scappaticci, Jr., Esq. [hereinafter, "Scappaticci Affirmation"], ¶ 20).
As stated above, the Court directed Claimant to serve and file "her proposed Claim against the State of New York, including the information about the alleged latent condition of the water by The Falls which caused Decedent to drown." The Court finds and concludes that Claimant followed the Court's directives. Where, pursuant to Court of Claims Act § 10(6), the Court directs that a claim be filed, it is the proposed Claim which was submitted with the Motion papers that must be filed "with such alterations as the Court may have directed" (emphasis added) (Matter of Iazzetta v State of New York, 105 Misc2d 567, 570 [Ct Cl 1980]). While the proposed Claim attached to the Motion papers contained 14 numbered paragraphs and was four pages long, and the Claim that was served upon Defendant and filed with the office of the Clerk of the Court contains 74 numbered paragraphs and consists of 12 pages, the cause of action asserted is the same, i.e., the wrongful death of Mr. Calverley. The Claim also includes information about the alleged latent condition of the water by The Falls. The Court finds and concludes that the Claim which has been filed and served is in compliance with the Court's Decision that granted the Motion for permission to file a Claim late. The Court does not believe this Claim is, in sum and substance, different from the proposed Claim.
That being the case, Defendant's assertion that the Claim is untimely is without merit. The Court's Decision was filed with the office of the Clerk of the Court on May 30, 2018. Claimant filed her Claim with the office of the Clerk of the Court on June 22, 2018 and served it upon Defendant on June 21, 2018 (Scappaticci Affirmation, ¶¶ 23-24, and Exs. A, G, and H attached thereto). Thus, the Claim was timely filed and served within 45 days of the filing of the Decision.
Therefore, based upon the foregoing, Defendant's Motion to Dismiss is denied. The Court directs Defendant to serve and file a verified Answer to the Claim within forty (40) days of the date of filing of this Decision and Order (see Uniform Rules for the Court of Claims, § 206.7[a]).
November 21, 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:
Notice of Motion, Affirmation in Support,
and Exhibits Attached 1
Affirmation in Opposition and Exhibits
Reply Affirmation 3
Filed Papers: Claim