Application for permission to file a late claim alleging negligent failure to place safety rails on college student's upper bunk was granted.
|Claimant short name:||MATHEWS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK(1)|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Jacoby & Meyers, LLP
By: Andrew L. Spitz, Esq.
|Defendant's attorney:||Brown Hutchinson LLP
By: T. Andrew Brown, Esq.
Kimberly J. Campbell, Esq.
|Third-party defendant's attorney:|
|Signature date:||May 7, 2020|
|See also (multicaptioned case)|
Movant seeks leave to file and serve a late claim pursuant to Court of Claims Act § 10 (6).
Movant, then a 19-year old student at the State University of New York at Plattsburgh, allegedly suffered injury when he fell six feet from an upper bunk bed in his dormitory room at approximately 5:00 a.m. on September 13, 2018. That same morning movant reported the incident to a Resident Advisor who escorted him to the campus medical center, where a nurse arranged for a taxi to transport him to the hospital. According to the campus medical center's notes, movant "[a]pparently fell out of top bunk bed during the night" but "[d]oes not recall falling out of top bunk" (movant's Exhibit B). The notes further reflect that movant "[h]as 2 other roommates who did not hear him fall out of the bed" (id.). Movant states in an affidavit submitted in support of the motion that there were no railings on any of the three beds in the dormitory room. According to the movant, on the first day he moved into the room he requested the Resident Advisor to arrange for a railing to be placed on his upper bunk, but no railing was installed prior to the accident. Rather, it was not until a day or two after the accident that a dormitory janitor placed a railing along the side of the upper level bunk (movant's affidvait, ¶ 5). As a result of the incident, movant allegedly sustained a fractured left wrist, two fractured teeth, and a concussion.
The first issue for determination upon a late claim motion is whether the application is timely. Court of Claims Act § 10 (6) requires that a motion to file a late claim be made "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." The period within which a personal injury cause of action may be asserted against a citizen of the state is three years (CPLR § 214 ). Consequently, the instant motion filed on January 16, 2020 is timely.
Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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."
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Matter of Barnes v State of New York, 164 AD3d 977 [3d Dept 2018]; Williams v State of New York, 137 AD3d 1579 [4th Dept 2016]; appeal dismissed and lv denied 28 NY3d 958 ). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Matter of Barnes v State of New York, 158 AD3d 961, 962 [3d Dept 2018]; Matter of Martinez, supra; Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
The excuse advanced by counsel for the failure to timely file and serve a claim is that the movant did not contact his office until after the 90-day period in which to file and serve a claim, or notice of intention to file a claim, had expired. On March 22, 2019, shortly after movant's counsel was retained, a request was submitted to SUNY Plattsburgh under the Freedom of Information Law (FOIL) for accident and investigative reports. Movant's counsel states that the FOIL request was made in preparation for the instant motion, in order to demonstrate that the State had both knowledge of the essential facts constituting the claim and an opportunity to investigate. The Foil request resulted in the production of claimant's medical records from the campus medical center on November 20, 2019, nearly two months before the instant motion was filed (movant's Exhibit B).
No excuse is made for the movant's initial 6-month delay in retaining counsel and movant's counsel's excuse for their ensuing ten month-delay in seeking late claim relief is unreasonable. While movant's counsel indicates a response to their FOIL request was necessary to support the motion, the only records produced were movant's medical records which were available to him all along. Moreover, nothing in those records demonstrates the State's knowledge of the essential facts constituting the claim. The failure to proffer a reasonable excuse for the delay weighs against the movant.
Addressing the intertwined issues of notice, opportunity to investigate and prejudice, movant contends that the State had notice of the claim and a sufficient opportunity to investigate its circumstances because the accident was immediately reported to his Resident Advisor, who escorted him to the campus medical center where movant again advised a nurse of the circumstances of his accident. Movant also reported the incident to his faculty advisor and a campus janitor installed bed rails within a few days following the accident. The Court is satisfied that movant sufficiently apprised the State of the essential facts constituting the claim such that the State had the opportunity to investigate the underlying facts and evaluate its potential liability. In opposition to the motion, the State failed to demonstrate it will suffer any prejudice. These factors weigh in movant's favor.
With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective, and the record as a whole provides reasonable cause to believe that a valid cause of action exists (Matter of Martinez, 62 AD3d at 1227; Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Movant has met this low threshold.
"[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 ). The State is not an insurer against every injury that might occur on its property, however, and negligence will not be inferred from the mere occurrence of an accident (Covington v State of New York, 54 AD3d 1137, 1137-1138 [3d Dept 2008]). Like any other landowner, the State acting in its proprietary capacity " 'must act as a reasonable man in maintaining his property 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' " (Preston v State of New York, 59 NY2d 997, 998, quoting Basso v Miller, 40 NY2d 233, 241 ).
"To establish a prima facie case of negligence, the plaintiff is required to demonstrate that the defendant owed a duty to him or her, that the defendant breached that duty and that such breach was a proximate cause of the injuries sustained" (Montanez v New York State Elec. & Gas, 144 AD3d 1241, 1242-1243 [3d Dept 2016], quoting Evarts v Pyro Eng'g, Inc., 117 AD3d 1148 [3d Dept 2014]). Here, the State disputes movant's contention that it owed movant a duty to provide guardrails on his upper bunk. Like the facts in Ballard v City of New York (11 Misc 3d 1014 [NY Co., 2006]), whether the premises owner breached its duty to maintain its property in a reasonably safe condition by failing to provide safety rails on the upper bunk, whether the State knew or should have known there were no rails, and whether this condition was a proximate cause of movant's injury are questions of fact (cf. Rubin v Olympic Resort, 24 Misc 2d 131 [Nassau Co, 1960] [plaintiff failed to prove that there was no guard rail on upper bunk or it was not provided as an option or that the child actually fell out of bed]). Notably, evidence of custom and usage is admissible in certain cases to establish a standard by which reasonable care may be judged (Trimarco v Klein, 56 NY2d 98 ; Shannahan v Empire Eng'g Corp., 204 NY 543 ). At this stage, however, the movant has met his burden of demonstrating the proposed claim is not patently groundless or legally defective, and the record as a whole provides reasonable cause to believe that a valid cause of action exists. Accordingly, the merit of the proposed claim was sufficiently established for purposes of the instant application.
As for the final factor to be considered, it does not appear movant has an alternative remedy.
Insofar as the majority of factors, including the potential merit of the claim, weigh in movant's favor, the Court will grant the instant application.
Based on the foregoing, movant's application for leave to file and serve a late claim is granted and movant is directed to file and serve his claim in accordance with Court of Claims Act § 11 and § 11-a within forty-five days of the date this Decision and Order is filed.
May 7, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of motion dated January 14, 2020;
2. Affirmation dated January 14, 2020, with Mathews Affidavit and Exhibits A-C;
3. Affirmation in opposition dated March 11, 2020 with memorandum of law;
1. The caption has been amended sua sponte to reflect the only properly named defendant.