The pro se claimant's motion to dismiss numerous affirmative defenses in the defendant's answer and for permission to late file and serve a claim are all denied.
|Claimant short name:||LEWIS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the proper defendant|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||DEVON M. RADLIN, ESQ.|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 29, 2019|
|See also (multicaptioned case)|
Claimant Christopher Lewis alleges in claim no. 128361 that he sustained injuries on May 27, 2016 when he tripped and fell in the recreation field at Lakeview Correctional Facility (Lakeview). Claimant brings motion no. M-93763 to amend claim no. 128361, to dismiss the fourth, fifth, sixth, seventh, eighth, ninth, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, twenty-first, twenty-second, twenty-third and twenty-fourth affirmative defenses in the defendant's answer to claim no. 128361, and for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes claimant's motion.
On August 18, 2016, claimant served the Attorney General's Office with a notice of intention to file a claim (Claimant's Exhibit 2).(2) According to this notice of intention, claimant was injured while running as part of mandatory recreation when he injured his Achilles tendon "due to a divit [sic] hole in the surface of the recreational field."
On August 16, 2016, claimant filed claim no. 128361. This claim was served upon the Attorney General's Office on August 30, 2016 (Claimant's Exhibit 4). According to the claim, claimant was injured in the recreation field of Lakeview when "his foot went into a depression in the yard . . .".
On October 11, 2016, defendant filed its answer (Claimant's Exhibit 5), together with a demand for a bill of particulars. In its answer, the State raised several jurisdictional defenses, including, among others, the improper and untimely service of the notice of intention and of the claim, the failure to particularize the defendant's conduct as it relates to the action, and the failure to adequately describe the location of the incident or of the condition causing the incident.
On May 29, 2018, claimant's counsel filed an order to show cause as to why she should be relieved as counsel for the claimant (Defendant's Exhibit A). In her accompanying affirmation, claimant's counsel stated that she was making the motion because of claimant's failure to maintain communication with her office, and noted that from November of 2016 to approximately May of 2018, claimant had failed to contact her. In August of 2018, this motion was withdrawn when claimant contacted his attorney.
By response dated September 29, 2018, claimant responded to defendant's demand for a bill of particulars (Claimant's Exhibit 7). In the bill of particulars, it is alleged that the incident occurred in the "Recreation Field at or near the water fountain close to the where the obstacle course used to be located which is northwest of handball court and northeast of the softball field of Lakeview Correctional Facility, 9300 Lake Avenue, Brocton, New York 14716."
Claimant's Motion to Amend the Claim.
At paragraph 43 of her supporting affirmation, claimant's counsel states that claimant is seeking permission to amend claim no. 128361 "to include additional specificity as to the exact location where the incident occurred." Counsel then references claimant's affidavit sworn to October 12, 2018 offered in support of claimant's motion to amend (Claimant's Exhibit 1). Claimant's October 2018 affidavit recites the exact same description of the location of the incident as stated in his September 2018 bill of particulars (Claimant's Exhibit 7) and as stated in his proposed amended claim (Claimant's Exhibit 8). Pursuant to CPLR 3025 (b) and section 206.7 of the Uniform Rules for the Court of Claims, a pleading may be amended by leave of Court. "Leave shall be freely given upon such terms as may be just" (CPLR 3025 [b]).
Claims against the State are permitted only by the State's waiver of its sovereign immunity and in derogation of the common law. The State's waiver of its immunity is not absolute. Rather, it is contingent upon compliance with specific conditions placed on the waiver by the Legislature (Lepkowski v State of New York, 1 NY3d 201 ). Section 11 (b) of the Court of Claims Act "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed" (Lepkowski v State of New York, 1 NY3d 201  [internal quotation marks omitted]). Section 11 (b) further states that a "notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
The failure to strictly comply with the pleading requirements of Court of Claims Act §11 (b) amounts to a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result (Kolnacki v State of New York, 8 NY3d 277, 281 ; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). Whether a claim complies with the pleading requirements of Court of Claims Act § 11 (b) is determined by whether there is "sufficient definiteness to enable the State to be able to investigate the claim promptly and ascertain its liability under the circumstances" (Triani v State of New York, 44 AD3d 1032 [2nd Dept 2007]).
Among its affirmative defenses in its answer, defendant argues that the notice of intention and the claim are jurisdictionally defective for failing to provide an adequate description of the location of the incident or condition as required by section 11 of the Court of Claims Act (see the defendant's eighth, twenty-second and twenty-ninth affirmative defenses, Claimant's Exhibit 5). By his present motion, claimant is attempting to amend his claim to add a more specific description of the location where the incident occurred.
Attached to the opposing affidavit of Assistant Attorney General Michael T. Feeley is a certified copy of a map of the recreation yard at Lakeview. The yard depicted on the map is 291,200 square feet and contains two softball fields and four basketball courts (Defendant's Exhibit B). While the notice of intention refers to a "divit" and claim no. 128361 refers to a depression in the yard, neither description specifies where within the 291,200 square foot yard the "divit" or depression was located. Where, as here, the location of the incident is a jurisdictional condition placed on the State's waiver of immunity by Court of Claims Act § 11 (b), any jurisdictional defect in the description of the location cannot be cured by the submission of an amended claim (Kolnacki v State of New York, 8 NY3d 277 ; Hogan v State of New York, 59 AD3d 754 [3d Dept 2009]; Livingston v State of New York, 55 Misc 3d 1216 (A), affd 149 AD3d 1612 [4th Dept 2017]). Accordingly, claimant's motion to amend the claim is denied.
Claimant's Motion to Dismiss Affirmative Defenses.
Claimant also moves to strike fifteen of the twenty-five affirmative defenses asserted in defendant's answer (Claimant's Exhibit 5). All of the affirmative defenses questioned by claimant are jurisdictional defenses. If any were proven, claim no. 128361 would be dismissed as being jurisdictionally defective.
CPLR 3211 (b) permits an affirmative defense to be dismissed if "it is not stated or has no merit." On a motion to dismiss a defense, "all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof." (Stopani v Alleghany Co-op Ins. Co., 83 AD3d 1446 [4th Dept 2011], quoting Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]). It is the burden of the moving party to demonstrate that an affirmative defense is without merit as a matter of law (Vita v New York Waste Servs., LLC, 34 AD3d 559 [2d Dept 2006]). An affirmative defense should not be dismissed if there is any doubt as to its availability (Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]).
Claimant offers no affidavits of service, no green card receipts or any other evidence in support of his motion to strike any of defendant's affirmative defenses. In fact, claimant never demanded a bill of particulars regarding any affirmative defense and, therefore, cannot know what section or sections of Court of Claims Act §§ 9, 10 and/or 11 defendant is alleging was violated or the basis of the alleged violation. Rather, claimant merely denies the affirmative defense, i.e., the statute of limitations has not expired (see ¶ 68 of the supporting affirmation of Devon M. Radlin, Esq. dated April 5, 2019). However, assuming that the timely served notice of intention is jurisdictionally defective as it fails to adequately describe the location of the incident as required by Court of Claims Act § 11 (b), then the notice of intention would not extend the time within which a claim can be filed and served pursuant to Court of Claims Act § 10 (3). Thus, claim no. 128361 filed and served more than ninety (90) days after the claim accrued would have to be dismissed as untimely (Cofield v State of New York, UID No. 2019-028-502 [Ct Cl, Sise, A.P.J., Jan. 22, 2019]). In fact, claimant's counsel admits in ¶ 35 of her supporting affirmation that "Claimant's claim was served four (4) days late on defendant."
In addition, claimant argues that the affirmative defenses must be dismissed if the within relief is granted (see, i.e., ¶ 68 of the affirmation of Devon M. Radlin, Esq.). The Court can only assume that the relief referred to is claimant's motion to amend the claim. This portion of claimant's motion only addresses a small portion of the affirmative defenses raised and, more importantly, the relief that would supposedly affect the affirmative defenses has been denied by the Court. Claimant's submissions fail to articulate any argument addressed to the merits of defendant's affirmative defenses and fail to support claimant's burden of demonstrating that any of defendant's affirmative defenses are without merit as a matter of law. Accordingly, claimant's motion to dismiss defendant's affirmative defenses is denied.
Claimant's Motion for Permission to File and Serve a Late Claim.
A motion for permission to file and serve a late claim must be brought "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 ). A negligence action against a private citizen would have to be commenced within three years of accrual of the claim (CPLR 214). Accordingly, a motion for permission to late file a negligence claim must be brought within three years of accrual of the negligence. Claimant filed his motion to late file a claim on April 15, 2019. Claimant's motion is timely as it was brought within three years of May 27, 2016, the date of the incident.
The Court of Claims is vested with broad discretion to grant or deny permission to late file a claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In determining whether to grant permission to late file a claim, the Court must 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" (Court of Claims Act § 10 ). The enumerated statutory factors are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ). The first factor to be considered by the Court is whether the delay in filing the claim was excusable. Here, it is not so much the delay in filing, but the delay in filing and serving a notice of intention and/or a claim which meet the statutory requirements of the Court of the Claims Act § 11 (b). Whether any delay in serving a notice of intention or a claim that meets the statutory requirements was due to incarceration, ignorance of the law or law office failure, none of these excuses are adequate (see Langner v State of New York, 65 AD3d 780 [3d Dept 2009]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]; Matter of Lynch v State of New York, 2 AD3d 1002 [3d Dept 2003]; Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv denied 99 NY2d 589 ). The lack of an excusable delay is, however, only one of the factors to be considered.
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 ). Claimant argues that the defendant had sufficient knowledge of the facts on May 27, 2016, the date of the incident, from reports and from unnamed "individuals who were involved in this incident" (see ¶ 30 of Attorney Radlin's affirmation), and from the facts contained in the notice of intention and the claim to conduct a meaningful investigation. Claimant further argues that because the defendant had notice and an opportunity to investigate, there will be no prejudice to the defendant if the relief requested in his motion is granted.
Contrary to claimant's assertions, defendant did not have sufficient evidence to investigate the claim. Nothing in the notice of intention or in the claim set forth sufficient information for defendant to locate where the incident occurred or to ascertain it's potential liability. As previously noted, the notice of intention (Claimant's Exhibit 2) merely states that claimant fell due to a divit in the recreational field and the claim (Claimant's Exhibit 4) merely states that he tripped and fell when his foot went into a depression in the yard. This is particularly troublesome as the recreational yard at Lakeview is approximately 291, 200 square feet. It was not until claimant served his bill of particulars in September 2018 (Claimant's Exhibit 7), more than two years after the incident, that defendant received a more specific description of the location of the incident. Unfortunately, the description in the bill of particulars indicates an area "close to where the obstacle course used to be located," indicating that the yard has been reconfigured since the incident, making it even more difficult for defendant to now ascertain and locate the site of the incident. Defendant's ability to investigate the incident has thus been impeded, if not made impossible by claimant's failure to provide a timely and specific description of the place where the incident occurred. The State had neither knowledge of the essential facts of the claim nor an opportunity to investigate the circumstances of the claim, which substantially prejudiced the State (Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]). These three factors weigh against claimant's motion to late file.
The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is claimant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 ). While this standard places a heavier burden upon a party who has filed late, this standard does not require claimant to establish the merit of his claim or to overcome all legal objections before the Court will permit the filing of a late claim (Id. at 11-12).
In general, the State has a duty to maintain its property in a reasonably safe condition (Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]; Preston v State of New York, 59 NY2d 997 ; Basso v Miller, 40 NY2d 233 ). The State, however, is not an "insurer of inmate safety, and negligence will not be inferred from the mere occurrence of an accident" (Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], lv dismissed 97 NY2d 649 ). In a premises liability claim, claimant must show that an unsafe or dangerous condition existed on the premises, that the State either created the dangerous condition, or had actual or constructive notice of the dangerous condition, and failed to alleviate the dangerous condition within a reasonable time (Gordon v Museum of Natural History, 67 NY2d 836 ; Quintanilla v State of New York, 94 AD3d 846 [2d Dept 2012]).
Claimant's counsel in her supporting affirmation (see ¶¶ 27 and 28), argues that claimant's "Affidavit of Merit", with the claim, bill of particulars and responses to combined demands are more than ample to establish a meritorious cause of action. In his affidavit (Claimant's Exhibit 1), claimant alleges that he was caused to trip and fall due to a depressed, defective and uneven yard due to defendants' actions. The proposed claim (Claimant's exhibit 4) merely alleges that claimant's foot went into a depression in the yard due to the defendant's failure to "maintain supervise inmates" at Lakeview. Nowhere in claimant's affidavit or the proposed claim is there a description of the negligent "actions" of defendants nor any factual allegations regarding an alleged failure to supervise inmates. Moreover, neither claimant's affidavit nor the proposed claim contain any allegations of the existence of a dangerous condition in the yard, no allegations that the defendant had actual or constructive knowledge of any defective condition and no allegations that defendant failed to eliminate any such condition within a reasonable period of time. The mere conclusory allegation that claimant's injuries were somehow due to defendant's actions is simply insufficient to establish a meritorious cause of action (Langner v State of New York, supra at 783-784).
The only place where a dangerous condition or any of the other elements of a premises liability claim is even mentioned is in claimant's bill of particulars (Claimant's Exhibit 7). It is not for defendant, however, to review its records or the bill of particulars or any other discovery device to determine the nature of the claim against it. "The Court of Claims does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201 ). It would be futile to permit a proposed claim to be filed and served which was subject to dismissal for failure to comply with the pleading requirements of Court of Claims Act § 11 (b).
The final factor to consider is whether claimant has another remedy available. It does not appear that the claimant has any other remedy.
Based on the foregoing and having considered the statutory factors listed in Court of Claims Act § 10 (6), claimant's motion no. M-93763 for late claim relief is denied.
Accordingly, claimant's motion no. M-93763 to amend claim no. 128361, to dismiss the jurisdictional defenses in the defendant's answer and for permission to late file and serve a claim are all denied.
July 29, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The Court has read and considered the following:
1. Notice of motion, supporting affirmation of Devon M. Radlin, Esq. dated April 5, 2019, with annexed Exhibits 1-8;
2. Opposing affidavit of Assistant Attorney General Michael T. Feeley, Esq. sworn to May 14, 2019, with annexed Exhibits A-B.
2. On July 15, 2016, claimant attempted to file his notice of intention to file a claim with the Court in Albany, New York. As notices of intention are not filed, claimant's notice was returned.