Movant's application for leave to serve and file a late claim denied, no appearance of merit.
|Claimant short name:||LITTLEJOHN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||RYANNE G. KONAN, ESQ.|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Elizabeth Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 5, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on movant's application for leave to serve and file a late claim:
Notice of Motion, Movant's Supporting Affirmation and Exhibit...........................1
Defendant's Affirmation in Opposition and Exhibits...............................................2
Movant seeks leave to serve and file a late claim alleging that on July 6, 2017 at approximately 1:30 p.m.:
"near the intersection of Raymond Avenue and Lagrange Avenue, on the crosswalk located on Raymond Avenue and next to the U.S. Post Office, Poughkeepsie, New York, . . . claimant was walking on Raymond Avenue near Lagrange Ave and in front of the Post Office in the Town of Poughkeepsie and tripped due to a crack in the sidewalk causing claimant to fall to the ground with great force . . . The State of New York created the defective condition by using cheap materials to make and build the side walk. The State of New York knew or had reason to know that the material would be deteriorating during the passage of time. The State of New York was aware of the crack because numerous people had called and reported the crack which constituted a dangerous condition, and the defect was opened [sic] and obvious"
(Movant's Ex. A).
Court of Claims Act § 10 (6) requires the Court to consider, among other relevant factors, the following six factors set forth in the aforenoted section of the Court of Claims Act: (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 ).
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]). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" and movant's own unsubstantiated allegations do not show an appearance of merit (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]; Klingler v State of New York, 213 AD2d 378 [2d Dept 1995] [movant's unsupported opinion does not suffice to establish merit of their claim]).
In the case at bar, movant has not submitted any photographs of the alleged defect, an accident report, a witness statement, any evidence that the area was owned or maintained by the State, or any medical records indicating that the alleged defect was a cause of movant's injuries.
Defendant opposes the motion arguing that the State is not a proper party defendant because it does not own or maintain the sidewalk in issue (Defendant's Exs. 1-3). In support of its opposition to movant's application, defendant submits an affidavit from Glenn Boucher, Resident Engineer for the New York State Department of Transportation (NYSDOT) Residency 8-2, which covers northern and central Dutchess County. Boucher's duties include overseeing daily maintenance and operation of the State roadways in his jurisdiction. Boucher conducted an investigation of the area and found "no crosswalk located on Raymond Avenue next to the U.S. Post Office, Poughkeepsie, New York" (Defendant's Ex. 4), as described in the proposed claim. Boucher also stated that the NYSDOT is not responsible for maintenance of sidewalks on Raymond Avenue, Poughkeepsie, New York (id.).
Upon consideration of all the factors, the most significant factor which weighed heavily in the Court's determination to deny movant's application was movant's failure to establish the appearance of merit of the proposed claim (see Morris v Doe, 104 AD3d 921 [2d Dept 2013]). The Court finds that it would be an improvident exercise of discretion to grant claimant's application, where it has not been established that the State either owns or maintains the situs of the accident. Additionally, while no one factor is determinative, it would be futile to grant a late claim application where the claim would be subject to dismissal (see Savino v State of New York, 199 AD2d 254 [2d Dept 1993] [futile to permit filing of claim where movant did not submit evidence that State was responsible for maintenance of accident cite]; Ortiz v State of New York, 78 AD3d 1314 [3d Dept 2010]).
Accordingly, movant's application for leave to serve and file a late claim is DENIED.
February 5, 2018
White Plains, New York
Judge of the Court of Claims