Claimant's late claim motion due to insufficient location in original notice of intention and claim.
|Claimant short name:||CARLSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Gina M. Lopez-Summa|
|Claimant's attorney:||Davis & Ferber, LLP
By: Michael D. Schultz, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Alex J. Freundlich, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 8, 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-K; Defendant's Affirmation in Opposition with annexed Exhibits A-H; Affidavit in Opposition with annexed Exhibits 1-2; and Claimant's Reply Affirmation.
Claimant, Wendy Carlson-Leone, has brought this motion pursuant to Court of Claims Act (CCA) § 9 (8) seeking an order granting permission to amend the notice of intention to file a claim; to amend the claim file a late claim and directing that the proposed amended notice of intention as well as the proposed amended claim be deemed served on defendant. Claimant also seeks, in the alternative, an order pursuant to CCA § 10 (6) granting permission to file a late claim. Defendant, the State of New York opposes the motion.
Claimant served and filed a claim in this matter on December 18, 2019. Claimant alleged in the claim that on January 17, 2019 at 12:45 p.m. she was walking across the second level of the parking lot for the Health Science Center at Stony Brook University Hospital located at 100 Nicholls Road, Stony Brook, New York when she tripped and fell over a divot, crevice, crack or pothole in the pavement causing her to fall to the ground. Later in the claim, claimant describes the location of the accident as the top level of the parking lot.
Prior to filing the claim, claimant served a notice of intention to file a claim upon the Office of the New York State Attorney General on April 9, 2019. In the notice of intention claimant provides a more detailed description of the location of the accident. Claimant states that "the divot/pothole/crack/crevice was located on the 2nd level of the Health Science Center parking lot straight out of the doors from the Health Science School entrance/exit, approximately 8-10 feet north of the third light pole from the entrance doors located thereat, or straight approximately 150 feet from the Health Science School entrance/exit." Claimant describes the defect as being 6 inches wide and 12.5 inches long with a depth of 1-2 inches. Claimant also attached photographs of the defect as well as the area of the parking lot where she fell to the notice of intention.
Claimant initially seeks leave to amend her notice of intention to match her amended notice of intention. It appears as though the only change between the documents is replacing the words "2nd level" of the parking lot with the words "top level" of the parking lot. Claimant also seeks leave to amend her claim to use a uniform term to describe where claimant tripped and fell. Claimant again seeks to change the use of the words "2nd level" to "top level."
Defendant argues that the claim is jurisdictionally defective since it fails to specifically state the place where the claim arose.
Court of Claims Act § 11 (b) requires in pertinent part that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained." The notice of intention must also clearly state, inter alia, the place where the claim arose. These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 ).
Defendant states that the claim provides two distinct descriptions of claimant's accident location. Claimant, at one point in the claim, states that the accident occurred on the top level of the parking lot and then, at another point, states that the accident occurred on the second level of the parking lot. Claimant does not provide a more specific location of the accident in the claim other than stating that the accident occurred on the garage level.
Defendant submitted the affidavit of Michael Cullen, Associate Director of Facilities, Construction, Plant Operations and Housekeeping for Stony Brook University Hospital, in support of its position. Mr. Cullen explained that the parking garage in this matter is a three-level garage with 951 parking spots covering 579,132 square feet. Mr. Cullen identified the three levels as Ground Level (Level 1), Mid-Level (Level 2) and Roof Level (Level 3). He stated that Level 1 measures 157,908 square feet; Level 2 measures 210,612 square feet; and Level 3 measures 210,612 square feet. He explained that there is striping as well as directional markers on each level of the garage.
Given the size of each parking level of the Health Science Center at Stony Brook University Hospital parking lot and claimant's misidentification of the parking level where the subject accident occurred, the Court finds that the description of the location of the accident as recited in the claim as well as the notice of intention was not sufficiently definite to satisfy the jurisdictional requirements set forth in Court of Claims Act § 11 (b) (Kimball Brooklands Corp. v State of New York, 180 AD3d 1031 [2d Dept 2020]; Constable v State of New York, 172 AD3d 681 [2d Dept 2019]; Matter of DeMairo v State of New York, 172 AD3d 856 [2d Dept 2019]; Sharief v State of New York, 164 AD3d 851 [2d Dept 2018]; Triani v State of New York, 44 AD3d 1032 [2d Dept 2007]; Cobin v State of New York, 234 AD2d 498 [2d Dept 1996]; see also Katan v State of New York, 174 AD3d 1212 [3d Dept 2019]).
Leave to amend a claim or a notice of intention shall not be permitted to cure a jurisdictional defect in the Court of Claims (Kolnacki v State of New York, 8 NY3d 277 ; Lepkowski v State of New York, 1 NY 3d 201 ; Matter of DeMairo v State of New York, 172 AD3d 856 [2d Dept 2019]; Hogan v State of New York, 59 AD3d 754 [3d Dept 2009]; Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]). As such, the Court must deny claimant's motion to amend the claim as well as the notice of intention.
Turning to claimant's motion seeking permission to file a late claim, 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 ). 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, Inc. 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. 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, these factors weigh in favor of claimant's application.
It does not appear as though claimant has a full alternative remedy in this matter. Thus, this factor is found in claimant'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]).
The Court finds that, for the purposes of this motion, the claim has merit to proceed. The Court, however, cannot authorize the filing of a claim that does not meet the jurisdictional requirements of CCA § 11 (b). Thus, claimant is directed to attach the proposed amended notice of intention, together with legible copies of the photographs of the accident location which were attached to the original notice of intention in this matter, as exhibits to the proposed claim to be filed.
Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), the Court finds that the factors favor claimant's application. Thus, the Court hereby grants claimant's motion to file a late claim.
Accordingly, within sixty (60) days of the date this decision and order is filed, claimant shall file and serve the proposed amended claim together with the aforementioned exhibits as one document, together with payment of the appropriate filing fee, pursuant to Court of Claims Act §§ 11 and 11-a.
September 8, 2020
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims