Claimant's late claim motion. Trip and fall over broken sign post. Town is responsible pursuant to State Highway Law § 140 (18).
|Claimant short name:||BENYEI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Gina M. Lopez-Summa|
|Claimant's attorney:||Cartier, Bernstein, Auerbach & Steinberg, PC
By: Kenneth Auerbach, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Antonella Papeleo, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 27, 2020|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion; Claimant's Affirmation in Support with annexed Exhibits A-G; Defendant's Affirmation in Opposition with annexed Exhibits A-G; Defendant's Supplemental Affirmation in Opposition with annexed Exhibit A and Claimant's Reply Affirmation with annexed Exhibits H-L.
Claimant, Michael Benyei, has brought this motion pursuant to Court of Claims Act (CCA) § 10 (6) seeking an order granting permission to file a late claim. Defendant, the State of New York, opposes the motion.
Claimant alleges that on June 16, 2018 at approximately 3:00 p.m. he was caused to trip and fall on a broken sign pole protruding from a grass strip on the north side of the sidewalk opposite 109 West Broadway near the crosswalk, in the Village of Port Jefferson, Town of Brookhaven and County of Suffolk. Claimant also described the location as being a few feet west of the second crosswalk at the "T" intersection of East and West Broadway. Additionally, claimant provided the latitude 4056'47.6"N and longitude 7301'10.9"W for the location of the accident.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [3d Dept 2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10 (6) (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious; and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.
Claimant does not offer any legally acceptable excuse for the delay in filing the claim. It is well settled that a claimant's mistaken belief that a roadway or sidewalk upon which an accident occurred may have been a County, Village or Town roadway or sidewalk rather than a State roadway or sidewalk does not constitute a reasonable excuse for the delay in filing a claim against the State (Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976]; affd 42 NY2d 854 ). Additionally, an attorney's failure to timely and properly investigate a claim, in effect, constitutes law office failure, which is not an acceptable excuse (Casey v State of New York, 161 AD3d 720, 721 [2d Dept 2018]). However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.
The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. The Court finds that, given the entirety of the circumstances involved in the present action, as well as the 469 day delay in filing this claim, these factors are found to be in defendant's favor.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order for a claim to "appear to be meritorious": (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).
Defendant contends that it does not own or maintain jurisdiction over the sidewalk nor does it own or maintain jurisdiction over the specified street sign. In support, defendant provides an affidavit from Elizabeth Chamakkala, the Regional Claims Officer for Region 10. Ms. Chamakkala set forth that she is familiar with the roadways that are under the jurisdiction of the New York State Department of Transportation and that she read the Proposed Claim filed in this matter. She swore that prior to and on January 16, 2018 the incident situs as described in the proposed claim is not within the maintenance or control jurisdiction of the State of New York and the State of New York was not responsible for maintaining the location or any signs in the location.
Claimant's argument that the grassy strip between the road and the sidewalk, adjacent to a state owned roadway is owned and maintained by the State of New York is belied by the plain language of State Highway Law § 140 (18) which states in relevant part that the town superintendent shall, "[m]aintain all sidewalks in the town constructed by the state adjacent to state highways." Thus, even though 25A is a State roadway, the sidewalk and curb adjacent to the roadway is to be maintained by the town (Flynn v Town of N. Hempstead, 97 AD2d 430 [2d Dept 1983]). Clearly, the mere fact that a pathway is near a state owned roadway does not ascribe, without more, any legal relationship over the pathway to defendant.
Additionally, claimant has not provided any records or information that would establish that defendant is responsible for the sign and signpost. Accordingly, the Court finds that claimant has failed to establish that the claim is meritorious.
It does appear as though claimant has an alternative remedy against the Town of Brookhaven pursuant to State Highway Law § 140 (18). Thus, this factor is found in defendant's favor.
Therefore, based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10(6), the motion to file a late claim is denied.
August 27, 2020
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims