New York State Court of Claims

New York State Court of Claims
SHABAT v. STATE OF NEW YORK AND CITY UNIVERSITY OF NEW YORK, # 2021-032-051, Claim No. 128591

Synopsis

Following a trial pursuant to CPLR 603 to determine whether the Court has jurisdiction over the claim, the Court determined that no photographs were attached to the notices of intention to file a claim served on the OAG and CUNY. Without the inclusion of photographs that would have directed defendants to the exact location of the accident, the description contained in the notices of intention to file a claim did not comply with Court of Claims Act 11 (b).

Case information

UID: 2021-032-051
Claimant(s): TIFFANY SHABAT
Claimant short name: SHABAT
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK AND CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128591
Motion number(s):
Cross-motion number(s):
Judge: JUDITH A. HARD
Claimant's attorney: By: Michael N. David, Esq.
Murray Bohnenfield, Esq.
Defendant's attorney: Hon. Letitia James, Attorney General
By: Indira Mahabir, Assistant Attorney General
Suzette Corinne Merritt, Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 23, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The instant claim was filed on September 26, 2016, seeking damages for injuries sustained when claimant collided with a glass door located in Brooklyn College's Whitehead Hall. Prior to filing the claim, claimant served a notice of intention to file a claim on both the Office of the Attorney General (OAG) and the City University of New York (CUNY). The notice of intention to file a claim described the accident location as "the extreme right exit door on the street level, at Whitehead Hall, Brooklyn College, 2710 Campus Road, in the County of Kings, Borough of Brooklyn, City and State of New York" (Exhibits 1 and A, 3). Thereafter, defendants moved to dismiss the claim on the ground that the notice of intention to file a claim and the claim failed to comply with Court of Claims Act 11 (b), and therefore the Court lacked jurisdiction over the claim. In support of its motion, the State submitted two affidavits, one from an employee of the OAG and one from an employee of CUNY, averring that the notice of intention to file a claim received by each office did not contain photographs identifying the location of claimant's accident. Counsel for claimant then submitted an affirmation in which he averred that he had attached the photographs to the notices of intention prior to serving them. By Decision and Order dated June 25, 2018, the Court granted defendants' motion and dismissed the claim, finding that the Court lacked jurisdiction over the claim for its failure to comply with Court of Claims Act 11 (b). Claimant appealed, and the Second Department reversed this Court's Decision and Order (Shabat v State of New York, 177 AD3d 1009 [2d Dept. 2019]). In doing so, the Second Department stated that "the affidavits submitted by the defendants in reply created a triable issue of fact as to whether the claimant had included, with the notice of intention, photographs, which would have directed the defendants to the precise set of doors at issue" (id. at 1010-1011). Therefore, this Court ordered a trial, limited solely to the issue of determining whether claimant's service of a notice of intention upon the OAG and CUNY contained pictures depicting the site of the accident.(1) The trial took place virtually on April 16, 2021 and May 7, 2021.

FACTS

Michael N. David, Esq. has been an attorney since 1985, practicing primarily in the field of personal injury law. During the course of practicing personal injury litigation, he has prepared and served notices of intention to file a claim (4/16 T:15).(2) It is his custom and practice to attach photographs to notices of intention to file a claim (id. at 16).

The notice of intention to file a claim that David prepared for the instant claim included language indicating that photographs were attached to the claim (4/16 T:17). He testified that the description contained in the notice of intention to file a claim matched the pictures attached to the notice of intention to file a claim "perfectly" (id. at 40-41).

David personally served the notice of intention to file a claim on CUNY at 205 East 42nd Street (4/16 T:18). He arrived at the lobby of the building and waited while someone was called to accept service of the document (id.). A white female of average height and weight arrived in the lobby and accepted service of the notice of intention to file a claim, which consisted of three pages (id. at 18-19). There were two photographs on the last page of the notice of intention to file a claim (id. at 19). After serving the notice of intention to file a claim at CUNY, David traveled to the OAG's offices located at 120 Broadway (id.). He arrived at a window within the building where service of papers is accepted and handed the papers to the person in the window (id.). He does not remember how the papers were stamped (id.). It is not his practice to ask that all pages be stamped, only the first page is stamped (id. at 21).

Both claimant's Exhibit 1 and defendants' Exhibit A show a notice of intention to file a claim that is date-stamped and time-stamped as being accepted by the OAG's Claims Bureau on January 13, 2015 at 11:34 a.m. Both Exhibit 1 and Exhibit A also show a notice of intention to file a claim that is date-stamped and time-stamped as being accepted by CUNY's Office of General Counsel on January 13, 2015 at 11:04 a.m. Neither includes the photographs contained in Exhibit D, photographs which David testified to attaching to the notice of intention to file a claim (4/16 T:21-22). The photographs contained in Exhibit D show the door where claimant's accident occurred (id. at 22). When David was asked to describe the images in the photographs, he stated that "[t]he photos speak for themselves . . ." (id. at 23).

David testified that he has been the attorney of record on the claim since the inception of the litigation concerning claimant's accident (4/16 T:26). The claim was filed on NYSCEF on September 24, 2016.(3) Defendants uploaded their response to claimant's notice for discovery and inspection on April 7, 2017 (Exhibit I). Attached to the response were seven photographs taken at different angles depicting a door located in Whitehead Hall (Exhibit J). Defendants' discovery response explained that the photographs were pictures of the location of the accident taken by the OAG on October 24, 2016 (Exhibit I, 4). When questioned about the photographs in Exhibit J, David explained that he assumed that the photographs showed the same door as the door shown in Exhibit D (4/16 T:33).

At claimant's deposition in September 2017, claimant stated that the picture shown to her by counsel for defendants did not depict the location of her accident (4/16 T:35). David was "shocked" when claimant stated that the photographs shown at the deposition were not the same as the ones she had provided to David depicting the correct accident location (id. at 36).

Suzette Merritt, AAG has been an assistant attorney general for 13 years (4/16 T:43). She has visited Whitehead Hall several times during her career as an assistant attorney general, but never visited specifically in connection with this claim (id. at 50).

Exhibit 5 is the affirmation submitted in support of the summary judgment motion filed by defendants on December 13, 2017. The affirmation states that, at claimant's September 15, 2017 deposition, "[d]efendants became aware that claimant's allegations concerned an entirely different set of doors in Whitehead Hall, than what was reasonably understood to be the set of doors in question based on the Notice of Intention and the claim" (Exhibit 5, 12). Merritt explained that in Whitehead Hall, there is a "ground-level floor entrance, which faces the street" and "[a]t the rear of the building where the campus entrance is, there is an entrance that leads into the building from the inside of campus" at the "inner campus level" (4/16 T:53, 57). The former entrance faces "the actual street of Brooklyn" and requires a person to walk up a few stairs to enter from the outside (id. at 53). From inside the building, each entrance is on a different level, requiring a person to walk up or down stairs to walk between each entrance (id. at 54). The campus level door is lower than the entrance that faces the street (id. at 57). Exhibit D depicts the campus level entrance doors (id. at 59-60). Merritt clarified that both entrances are on the "ground level" but one faces the street, while one faces the inside of the campus (id. at 61). She did not know if the campus level entrance is on the same level as a city sidewalk (id. at 73).

Merritt testified that when she was assigned to the instant claim and reviewed both the notices of intention to file a claim served upon the OAG and CUNY, neither had photographs attached (5/7 T:17). No photographs were attached to the claim served upon the OAG on September 29, 2016 (id. at 18).

Exhibit F contains photographs taken by Investigator Crystal Combs. The photographs in Exhibit F were presented to claimant at her deposition in September 2017 (5/7 T:22). Combs took the pictures at the direction of Merritt after Merritt received both notice of intention to file a claim and the claim (id. at 19). Exhibit J contains pictures taken by Combs that Merritt served in response to claimant's discovery demands (id. at 21). Merritt did not receive any communication from counsel for claimant prior to claimant's deposition regarding the fact that the photographs did not depict the accident location (id.). Exhibit D, which contains photographs of the correct accident location, were not received by Merritt until September 16, 2017--the day after claimant's deposition (id. at 23).

Merritt received the file for this claim in October 2016, after the claim was served and directed Combs to the scene to investigate that same month (5/7 T:25, 31). She does not receive a file if only a notice of intention to file a claim is served (id. at 26). Merritt testified that neither notice of intention to file a claim in the claim file had photographs attached (id. at 26-27). When she receives a file, it is a "full and complete file of whatever has been served on [her] office" (id. at 27). Merritt acknowledged that both notices of intention to file a claim indicated that photographs were attached, but she did not contact claimant's counsel to ask about the missing photographs (id. at 29).

Merritt testified that she asked Combs to take pictures of the location described in the notices of intention to file a claim and the claim (5/7 T:34). Combs only investigated the doors facing the street, not the doors facing the campus (id. at 36).

Min Chul Rhee is employed as a paralegal in the OAG's Claims Bureau for approximately 17 years (5/7 T:41-42). He explained that, when a notice of intention to file a claim is received, he first checks to see if it is properly verified (id. at 42-43). If not properly verified, the notice of intention to file a claim is date-stamped and rejected. If it is properly verified, it is date-stamped by the managing office and then forwarded to the Claims Bureau, where it is date-stamped again when received (id.). The claim is then cross-referenced to see if there are any related cases. If none are found, a new record is created in New York Matters, a statewide program that tracks cases. The document is then scanned in its original form and then filed in a physical drawer (id. at 43). The documents are scanned as soon as possible after receipt (id. at 48). It is part of the OAG's usual protocol to scan photographs attached to documents received (id.).

Rhee was asked to perform a search for documents related to the instant claim in January 2018 (5/7 T:43-44). He testified that he may have seen or processed the notice of intention to file a claim before that date, but could not recall an exact date (id. at 51). The search revealed two notices of intention and a claim (id. at 44). He identified Exhibit A as the notice of intention to file a claim that was personally served on the managing office on January 13, 2015 and forwarded to the Claims Bureau that same day (id. at 45-46). Exhibit A is identical to the copy of the notice of intention to file a claim in the computer filing system (id. at 46). Rhee did not observe any photographs attached to the notice of intention to file a claim when he performed his search (id. at 48). He checked both the computer system and the physical file.

On cross-examination, Rhee testified that he was not the clerk who provided a time stamp or physically accepted the notice of intention to file a claim when it was received in the managing office on January 13, 2015 (5/7 T:54). Thus, he cannot say for certain whether photographs were attached at the time that the document was date and time-stamped, but stated that it is "unlikely" that the photographs were attached (id. at 55, 58). There is also no written record of the chain of custody of the notice of intention to file a claim after it is received (id. at 56). Rhee stated that things have become lost in the office but it is "very rare" (id. at 58).

Crystal Combs has been an investigator for the OAG since March 2008 (5/7 T:61). As an investigator, Combs assists the assistant attorney general in investigating claims, including traveling to locations and taking photographs (id. at 62). When the instant claim was assigned to her in 2015, she received the notices of intention to file a claim served on the OAG and CUNY but neither contained any photographs (id.).

At some point in time, Combs went to Brooklyn College's Whitehead Hall at 2710 Campus Road and brought the notices of intention to file a claim and her camera (5/7 T:64). Combs testified that, after submitting the notices of intention to file a claim to Brooklyn College's Legal Department, the entry and exit doors at 2710 Campus Road were determined to be the only doors located on the street level (id. at 65). When she arrived at Whitehead Hall, she met with Bill Elfstrom, the Administrative Superintendent for Brooklyn College and went to the entry and exit doors on the street level to take photographs. There were no other doors located at the street level in Whitehead Hall (id. at 66).

Exhibit F shows the photographs taken by Combs and depict "the entrance and exit of Whitehead Hall, street level, facing Campus Road" (5/7 T:66). Combs later became aware that claimant was injured at a different location than that depicted in Exhibit F. Combs stated that the location where claimant was injured was "the entrance and the exit way on the other side of Whitehead Hall, facing the courtyard of the campus" (id. at 67). The location where claimant was injured is not on the same level as "street level" (id.). Combs testified that, if photographs were attached to the notice of intention to file a claim, she would have gone to the location depicted in the photographs. Since there were not photographs attached, she determined the location based on the address and description of "street level" (id. at 69). She stated that the courtyard is not the street level (id.).

On cross-examination, Combs stated that the first time she traveled to Brooklyn College to investigate the claim was on October 24, 2016, at which time she took photographs (5/7 T:70). When she received a copy of the notice of intention to file a claim from her supervisor, she noted that no photographs were attached. She asked Rhee if photographs were attached, and he stated that there were none. She does not remember the date of this conversation, but recalled that the conversation happened in 2016, shortly before she went to Brooklyn College on October 24, 2016 (id. at 71-72, 79).

Combs explained that the doors that she photographed are "the only doors on Campus Road at that address, 2710 Campus Road. There were no other exit or entrance doors on Campus Road at Whitehead Hall, but those doors" (5/7 T:80). She did not attempt to locate other exit doors (id. at 82). She further explained that the doors shown in Exhibit D face a courtyard and are not on the same level as the street (id. at 85). To access Campus Road from the doors depicted in Exhibit D, a person would need to enter the building through those doors, and go up a flight of stairs to reach the doors depicted in Exhibit F that face Campus Road. A street can be accessed from the courtyard that is seen through the doors depicted in Exhibit D. However, that street is Bedford Avenue, not Campus Road (id. at 87). She acknowledged that the address of the building where the doors in Exhibit D are located is 2710 Campus Road (id. at 89-90).

Exhibit H is the affidavit of Sophia Walsh-Newman, which both parties stipulated to entering into evidence at trial (5/7 T:38). Ms. Walsh-Newman is a Higher Education Assistant-Paralegal in the Office of the General Counsel and Vice Chancellor for Legal Affairs for CUNY (Exhibit H, 1). Ms. Walsh-Newman performed a search of her office's computer filing system and found that the notice of intention received by her office on January 13, 2015 did not have any photographs attached (id. 3-4). Based on her search and review of her office's records, no record was located establishing that CUNY was served with a notice of intention to file a claim with photographs attached (id. 5).

LAW AND DISCUSSION

"The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]; see Court of Claims Act 8; Alston v State of New York, 97 NY2d 159, 163 [2001]). Moreover, "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Matter of New York City Asbestos Litig., 24 NY3d 275, 281 [2014] [internal quotation marks and citations omitted]). As relevant here, Court of Claims Act 11 (b) "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 at 207 [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept. 2016] [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept. 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept. 2008]). "The statement[s] must be specific enough so as not to mislead, deceive or prejudice the rights of the State" (Rodriguez v State of New York, 8 AD3d 647, 647 [2d Dept. 2004]). Defendants are not required "to ferret out or assemble information that section 11 (b) obligates the [movant] to allege" (Lepkowski v State of New York, 1 NY3d at 208).

Here, defendants argue that claimant's description of the location of the accident in the notice of intention to file a claim as "the extreme right exit door on the street level, at Whitehead Hall, Brooklyn College, 2710 Campus Road, in the County of Kings, Borough of Brooklyn, City and State of New York" (Exhibit A, 3), was insufficient to describe the location of claimant's accident.(4)

In compliance with the Second Department's order, the Court must first resolve the factual issue of whether counsel for claimant, Mr. David, attached the photographs depicted in Exhibit D to the notices of intention to file a claim served upon the OAG and CUNY (see Shabat v State of New York, 177 AD3d at 1010-1011).

The Court resolves the aforementioned question of fact in favor of defendants. First David did not unequivocally testify to attaching photographs to the notices of intention to file a claim served on the OAG and CUNY. He testified that (1) there have been many instances where he attaches photographs to notices of intention to file a claim; (2) he prepared the notices of intention to file a claim in the instant claim; (3) the notices of intention to file a claim state that photographs are attached; and (4) he personally served the notices of intention to file a claim on both the OAG and CUNY (4/16 T:16-17). David testified that the notices of intention to file a claim consisted of three pages and that the last page contained the photographs (id. at 18-19, 22). However, while the first page of the notices of intention to file a claim were stamped, David testified that he does not ask for a stamp on each page (id. at 20-21). Claimant also failed to introduce into evidence a complete reproduction of the notices of intention to file a claim with the photographs attached, choosing instead to rely on defendants' reproduction of the notices of intention to file a claim, which do not contain any photographs (Exhibits 1 and A), and Exhibit D, which shows the photographs that were allegedly attached to the notices of intention to file a claim. However, Exhibit D does not have any date or time stamp exhibiting service on either the OAG or CUNY, rather, it is a copy of an e-mail sent from David to Merritt on September 16, 2017--the date after claimant's deposition.

The Court credits the testimony of Rhee and the affidavit of Walsh-Newman in establishing that the notices of intention to file a claim did not have photographs attached. Rhee testified to the straightforward process employed by the Claims Bureau in processing served documents (5/7 T:43-48). He explained that the documents received are expeditiously scanned into the computer in their original form (id. at 43). He also checked both New York Matters, the OAG's computer file systems, and the office's physical file to determine if photographs were attached to the claim and observed none (id. at 45-48). Walsh-Newman also determined after searching CUNY's office records that the notice of intention to file a claim served on January 13, 2015 did not contain any photographs (Exhibit H, 5).

To find in favor of claimant on this factual issue would require the Court to find that both the OAG and CUNY, who maintain separate offices, lost or misplaced the photographs allegedly attached to the notices of intention to file a claim prior to scanning the documents into their respective computer systems. The Court finds such a scenario extremely unlikely. The more likely scenario and what the Court determines to have occurred in this instance is that counsel for claimant failed to attach the photographs to the notices of intention to file a claim prior to their service.

Having found that the photographs were not attached to the notices of intention to file a claim, the Court must determine whether claimant's description of the location of the accident in the notices of intention to file a claim as "the extreme right exit door on the street level, at Whitehead Hall, Brooklyn College, 2710 Campus Road, in the County of Kings, Borough of Brooklyn, City and State of New York" (Exhibits A and 1, 3), was sufficient pursuant to Court of Claims Act 11 (b) to describe the location of claimant's accident.

The Court determines that claimant's description of the location of the accident was "insufficient to permit defendant[s] to investigate [their] liability" (Sommer v State of New York, 131 AD3d 757, 758 [3d Dept. 2015]; see Sega v State of New York, 246 AD2d 753, 755 [3d Dept. 1998], lv denied 92 NY2d 805 [1998]; Wilson v State of New York, 35 Misc 3d 227, 232-233 [Ct Cl 2011]). The testimony and evidence received at trial established that there are two sets of doors in Whitehead Hall that can reasonably be described as "exit door[s]" (see Exhibits A and 1, 3). One faces Campus Road, which is the road referenced in the notices of intention to file a claim, and clearly faces the street (Exhibit J), leading to the conclusion that this set of doors constitutes an exit door on the "street level" (Exhibit B, 7). However, that set of doors is not the location of the accident. The doors referred to in the notices of intention to file a claim are located on the other side of the Whitehead Hall building, away from Campus Road (5/7 T:86-87). While the doors depicted in Exhibit D--the accident location--may also be described as located on the street level, as one can access Bedford Avenue from the courtyard to which the doors lead (id. at 87), Court of Claims Act 11 (b) requires more specificity where the description provided in a notice of intention to file a claim could reasonably encompass more than one location. For example, in Katan v State of New York, 174 AD3d 1212, 1213 [3d Dept. 2019], the Third Department found a location description insufficient where the claim alleged that claimant fell on stairs proximate to Moffit Hall and Clinton Dining Hall on the campus of the State University of New York at Plattsburgh. In affirming the lower court's dismissal of the claim, the Third Department noted that there were three separate staircases proximate to Moffit Hall and Clinton Dining Hall (id.). Because the description of the location could have referred to any of the three staircases, the claim failed to comply with Court of Claims Act 11 (b) (see also Triani v State of New York, 44 AD3d 1032, 1033 [2d Dept. 2007] [finding that the claim's description of the location of the accident as "the sidewalk abutting Kingsboro Hospital at 681 Clarkson Avenue in Brooklyn" was not sufficiently specific under Court of Claims Act 11 (b)], revg Triani v State of New York, 2006 WL 6067589 [Ct Cl, Aug. 30, 2006, No. 112028]; Alpert v State of New York, UID No. 2017-040-027 [Ct Cl, McCarthy, J., Mar. 1, 2017] [finding that the proposed claim failed to set forth the place where the claim arose where there were two staircases in the subject building and claimant failed to identify the staircase where the accident occurred]).(5) "Moreover, '[t]he State is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act 11' " (Criscuola v State of New York, 188 AD3d 645, 646 [2d Dept. 2020], quoting Matter of DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept. 2019] [additional citation omitted]).

Accordingly, the Court finds that the notices of intention to file a claim served on January 13, 2015 did not comply with Court of Claims Act 11 (b) and therefore were jurisdictionally defective. Thus, the notices of intention to file a claim did not extend the 90-day limitation period set forth in Court of Claims Act 10 (3) and the claim filed on September 26, 2016 was untimely.

Based upon the foregoing, the Court finds that it lacks jurisdiction over the claim. Claim number 128591 is dismissed.

Let judgment be entered accordingly.

June 23, 2021

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims


1. CPLR 603 allows the severance of a "separate issue" to be conducted "[i]n furtherance of convenience[.]" Severance of a separate issue from the claim is a "discretionary determination" that is "[t]ypically . . . used to address such nonmerits defenses as . . . lack of jurisdiction" (Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73, 78-79 [1st Dept. 2002] [citations omitted]).

2. References to the 4/16/21 trial transcript are indicated here as (4/16 T: ).

References to the 5/7/21 trial transcript are indicated here as (5/7 T: ).

3. The claim was uploaded to NYSCEF on September 24, 2016. September 24, 2016 was a Saturday, therefore the official filing date of the claim is Monday, September 26, 2016.

4. The claims served on both the OAG and CUNY contained substantially the same language, listing the address of the accident location as "Whitehead Hall open to the public located at Brooklyn College, 2710 Campus Road, Brooklyn, NY" where "the plaintiff's face was caused to come into contact with the extreme right glass exit door on the street level" (Exhibits B and C, 5, 7).

5. Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.