A motion for leave to serve a late property damage claim arising from an alleged improperly maintained culvert denied for failing to demonstrate its merits and for want of jurisdiction to the extent it seeks a declaratory judgment or order of mandamus.
|Claimant(s):||CONIFER WATERVILLE ASSOCIATES LP|
|Claimant short name:|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has amended the caption sua sponte to reflect the only proper defendant before the Court.|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||DAVIDSON FINK, LLP
BY: RICHARD N. FRANCO, ESQ.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: ALBERT D. DIGIACOMO, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 4, 2021|
|See also (multicaptioned case)|
The following papers were read on claimant's motion to serve a late notice of claim:
1. Notice of Motion with Affirmation of Richard N. Franco, Esq., filed January 27, 2021;
2. Memorandum of Law in Support of Motion for Leave to File Late Claim, dated January 12, 2021;
3. Memorandum of Law in Further Support of Motion for Leave to File Late Claim with attached exhibits, dated January 12, 2021;
4. Affidavit of Richard Pierce with attached exhibits, dated January 13, 2021;
5. Affirmation of Albert D. DiGiacomo, AAG, with attached exhibit, filed April 7, 2021;
6. Memorandum of Law in Opposition to Claimant's Motion for Permission to File a Late Claim, dated April 7, 2021;
7. Memorandum of Law in Further Support of Motion for Leave to File Late Claim, dated April 12, 2021.
Before the Court is a motion for leave to file a late property damage claim pursuant to Court of Claims Act § 10 (6). Movant is the owner of property improved with an apartment building located at 145 Stafford Avenue S., Waterville, New York. It is undisputed that a severe rain and wind storm caused flooding on movant's property on October 31, 2019. On that date, an undescribed sinkhole(2) formed on an unidentified portion of movant's property, allegedly a result of a manhole and culvert collapsing due to lack of unspecified maintenance by the State. (Pierce aff at 2, ¶ 7.)
Movant's theory of the State's responsibility for the property damage is twofold. First, it is based on the State's filing of a permanent easement over movant's premises in 1984. The easement provided, in part, that State appropriated "in and over" a portion of movant's property "for the purpose of constructing, reconstructing, and maintaining thereon a culvert and appurtenance."(3) Therefore, movant reasoned the State was obligated to maintain the culvert and alleged that it failed to do so. Second, in support of its contention that defendant failed to maintain the culvert, movant relied upon its insurance company's undisclosed opinion that the sinkhole was caused by the lack of the State's maintenance of the culvert.
Attached to the moving papers are several estimates prepared by the State Department of Transportation, separated into two categories: costs to be paid by the DOT and costs for which the property owner was responsible. Even though movant acknowledged that it would be responsible for some of the costs in repairing its property, its proposed claim now seeks to hold the State liable for all costs because the owner's share is more than the State had initially estimated. Specifically, movant is seeking $138,873 for the costs to repair its premises. Movant, without explanation, also seeks to be reimbursed for $5,950 for the cost of having its land surveyed. Moreover, movant alleged in the final two paragraphs of its proposed verified claim that: "18. [A] dangerous condition remains on the property, as the sinkhole remains unfixed and represents a danger to the public. 19. Defendant has wrongfully refused to bare the expense of repairing the collapsed culvert and surrounding earth, or to compensate Claimant for the amount of repairs." (Movant's attorney aff, Exhibit A.)
The State opposes the motion contending that the balancing of factors required by Court of Claims Act § 10 (6) do not weigh in favor of granting the motion; specifically, the delay in filing its claim was not excusable; the proposed claim failed to meet the pleading requirements; and there was no timely notice of intent to sue the State, so the Court was deprived of jurisdiction. For the reasons set forth below, the Court, on these motion papers, declines to exercise its discretion to grant movant permission to file a late claim.
Initially, the Court must first determine whether the application for late claim relief 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." Movant has timely filed its motion within three years of the date the cause of action accrued and is therefore timely (CPLR 214). (Progressive v State of New York, UID No. 2020-015-048 [Ct Cl, Collins, J., May 6, 2020].)
Court of Claims Act § 10 (6) grants this Court discretion to allow the filing of a late claim upon consideration of certain factors enumerated in the statute and 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" (Cabrera v State of New York, UID No. 2011-039-220 [Ct Cl, Ferreira, J., Mar. 16, 2011][internal quotations and citation omitted]). Court of Claims Act § 10 (6) sets forth, at minimum, the six factors to be weighed when deciding whether to grant an application to file a late claim. In applying the criteria, it is important to note that no one factor is more important because the presence or absence of any one factor is not controlling. (id.) Nevertheless, without the demonstration of merit, the most important and weighted factor, it would be imprudent to permit litigation to proceed without clear evidence that it is not a baseless lawsuit. (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009] see Progressive v State of New York, UID No. 2020-015-048 [Ct Cl, Collins, J., May 6, 2020].)
Since movant's application requires review of a government agency's decision, the Court must first assess whether it has jurisdiction over the proposed claim or if jurisdiction lies with the Supreme Court in the form of a hybrid declaratory judgment/Article 78 proceeding. (Family & Educational Consultants v New York State Insurance Fund, UID No. 2017-038-512 [Ct Cl, DeBow, J., Feb. 10, 2017].) The test is "whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim . . . [and] whether the claim would require review of an administrative agency's determination." (Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143-1144 [3d Dept 2009] [internal quotation marks and citations omitted], lv denied 12 NY3d 712 .)
As explained by the Appellate Division, Fourth Department in Green v State of New York (90 AD3d 1577, 1578 , lv denied 18 NY3d 901 ):
"Regardless of how a claim is characterized, one that requires, as a threshold matter, the review of an administrative agency's determination falls outside the subject matter jurisdiction of the Court of Claims (see Gross, [supra] at 236; Buonanotte, [supra] at 1143-1144; Matter of Salahuddin v Connell, 53 AD3d 898, 899 [(3d Dept) 2008]).
In order for Claimant to recover damages on his Claim, the Court would have to examine and reverse the administrative actions of [the agency] . . . The jurisdiction of the Court of Claims is limited to awarding damages in tort or contract and does not extend to the review of discretionary determinations of State agencies (Lantry v State of New York, UID 2001-001-027 [Ct Cl, Read, J., June 28, 2001]). "If the award of a money judgment must be preceded by overturning and annulling a determination of an administrative agency then the primary relief sought is not money damages" (Ouziel v State of New York, 174 Misc 2d 900, 905 [Ct Cl 1997]). Claimant should have challenged the determination of [the agency] by way of a proceeding pursuant to CPLR Article 78 in Supreme Court. It is well settled that this Court lacks subject matter jurisdiction of a Claim where the primary relief sought is obtainable in an Article 78 proceeding, regardless of how the Claim is characterized (Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005])."
Accordingly, to the extent that movant's application seeks a declaratory judgment as to its rights, a determination as to the propriety of the State officials' decisions, an order compelling the State to act, or equitable relief, it must be denied for want of jurisdiction. (see Foy v State of New York, UID No. 2021-028-505 [Ct Cl, Sise, P.J., Feb. 16, 2021].)
Neither has movant sufficiently alleged a meritorious property damage claim against the State. The burden of proof on an application for permission to file a late claim is higher than that of a claimant who timely files a claim. (see Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992].) In order to establish a meritorious claim, a claimant must establish that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977].)
In the first instance, the Court concurs with the defendant's opinion that movant has not met the substantively pleading requirements of the Court of Claims Act §§ 10 and 11. In support of its application, movant submitted the affirmation of its attorney, the affidavit of the president of its managing agent, and a verified claim verified by the latter.(4) These documents fail to identify the precise location of, nor the extent of any damage to movant's property, including whether improvements to the property or structures were affected. Attaching the appropriate map delineating the location of the entire culvert is not sufficiently specific to meet the substantive pleading standard. (see Newman v State of New York, UID No. 2010-038-105 [Ct Cl, DeBow, J., Aug. 5, 2010].) Although two cost estimates were attached to movant's papers, they were meaningless without any explanation as to their creation or differences, and without reference to whether any proposed repairs merely replaced what was damaged or were enhancements due to negotiations with or requests by movant.
Likewise, a proposed claim that only contains conclusory and general allegations of negligent maintenance, which lacks specific allegations describing how and when the defendant was negligent, fails to adequately plead a negligence claim and is jurisdictionally defective. (Owens v State of New York and New York State Department of Transportation, UID No. 2018-038-517 [Ct Cl, DeBow, J., Jan. 25, 2018].) Here, movant does not elucidate how the State was negligent or explain what caused the alleged collapse of the culvert. The claim lacks factual allegations that specify the act or omission upon which the defendant's liability is predicated. It is entirely unclear to the Court what happened except that a large sinkhole developed, without reference to the alleged failure to maintain the culvert. In order to sustain its burden of demonstrating merit, movant was required to submit expert proof that the culvert collapsed and that the State's failure to comply with contemporary standards of maintenance, repair and upkeep was the proximate cause of the culvert's collapse and creation of the sinkhole. (see Hayman v State of New York, UID No. 2012-015-289 [Ct Cl, Collins, J., Jan. 4, 2012]; see also Knospe v State of New York, 9 Misc 3d 1126(A) [Ct Cl, 2005].)
Given the limited facts provided, it is important to note that the State is not an insurer of its drainage system and cannot be held liable unless damages are caused by active negligence in the maintenance of the system. (Watt v County of Albany, 140 AD3d 1260, 1261 [3d Dept 2016].) Accordingly, the mere occurrence of a flood and sinkhole, alone, is not sufficient to establish a meritorious property negligence claim. (see De Witt Props. v City of New York, 44 NY2d 417, 427 ; Biernacki v Village of Ravena, 245 AD2d 656, 657 [3d Dept 1997].) Moreover, the State will not be held accountable for damage caused by flooding due to an atypical storm if there is no evidence that the State's actions caused or contributed thereto. (Brooklands v State of New York, UID No. 2017-051-009 [Ct Cl, Martin, J., Jan. 31, 2017].) Further, qualified immunity will prevent liability from being imposed upon a government when the collapse of a culvert is due to its size being inadequate so long as the negligent design was not due to plainly inadequate study or there was no reasonable basis for the plan. (see Ideal v State of New York, UID No. 2014-044-008 [Ct Cl, Schaewe, J., Sept. 24, 2014]; see also Dean/Carson v State of New York, UID No. 2016-029-089 [Ct Cl, Mignano, J., Nov. 15, 2016].)
Based on the foregoing, the Court declines to exercise its discretion at this juncture and movant's motion for permission to file a late claim (M-96418) is denied without prejudice.
June 4, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims
2.Although no pictures or measurements of the sinkhole or its precise location were provided, it was alleged that it was large enough to cause two vehicles to fall in.
3. The Court notes that the permanent easement also reserved to the owner the right to use and not to be further limited except to the extent necessary to the "construction and as so constructed, the maintenance, of the herein, identified project." (proposed claim, Exhibit A.)
4.Attached to movant's reply memorandum of law were copies of emails, which are not properly authenticated and therefore have no evidentiary value.