|Claimant short name:||LAYER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||Matrin J. Schwartz, Esq.|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Kimberly A. Kinirons, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 25, 2021|
|See also (multicaptioned case)|
Claimant, proceeding pro se, filed the instant claim with the Clerk of the Court on December 9, 2019.(1) On its own motion, the Court issued an Order to Show Cause, dated November 10, 2020 and filed on November 12, 2020, directing the parties to submit statements relating to service of the claim as claimant may have failed to comply with the service requirements of Court of Claims Act § 11. Defendant submitted an affirmation in response to the Court's motion. Claimant cross-moves for permission to file and serve a late claim. Defendant opposes claimant's late claim application.
The Court's Order to Show Cause
"A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 , [3-b]). Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept 2003]). Once challenged, the burden is upon the claimant to establish proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d at 1124; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept 1989]; Aquila v Aquila, 129 AD2d 544, 545 [2d Dept 1987]).
In response to the Court's Order to Show Cause, defendant has submitted an affidavit sworn to by Helen Orlowski, Administrative Assistant I in the Regional Office of the Attorney General (OAG) in Suffolk, New York (Affirmation of Kimberly A. Kinirons, AAG, Ex. B), who is familiar with the office's record keeping system (Orlowski Aff. ¶¶ 1-2). Orlowski avers that, on January 21, 2020, the OAG received a letter from the Court of Claims, dated January 21, 2020, informing the OAG that the Court of Claims had received the instant claim on December 9, 2019 (id. ¶ 4). On March 3, 2021, Orlowski contacted the Court of Claims Clerk's Office and was informed that no affidavit of service had been filed for the instant claim (id.). Orlowski avers that "no record was located establishing that the [OAG] was served with the Claim in the above referenced matter" (id. ¶ 5).
Counsel for claimant avers that claimant cannot locate a return receipt to indicate that the claim was served upon the OAG by certified mail, return receipt requested (Affirmation of Michael J. Schwartz, Esq., ¶ 5). He further avers that claimant "is not even certain" that he served the OAG by certified mail, return receipt requested (id.).
"A properly executed affidavit of service raises a presumption that a proper mailing occurred" (Engel v Lichterman, 62 NY2d 943, 944 ). As of the date of this Decision and Order, claimant has not provided an affidavit of service for the claim. The Court therefore finds that the facts, as stated above, constitute sufficient proof that the claim was not served upon defendant (see Cooper v State of New York, UID No. 2014-038-509 [Ct Cl, DeBow, J., Feb. 24, 2014]).(2) Thus, the claim is jurisdictionally defective and must be dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d at 722-723; Cudjoe v State of New York, 4 AD3d 322, 323 [2d Dept 2004]; Pagano v New York State Thruway Auth., 235 AD2d 408 [2d Dept 1997], lv denied 90 NY2d 804 ; Ramirez v State of New York, UID No. 2008-038-592 [Ct Cl, Apr. 1, 2008, DeBow, J.]).
Claimant's Cross Motion to File and Serve a Late Claim
The proposed claim alleges that on August 25, 2019, claimant was injured at the Jones Beach Bandshell in the Jones Beach State Park when he was struck in the head and eye by a liquor bottle thrown by another concertgoer. The proposed claim further alleges that the State was negligent in failing to adequately search concertgoers before the event and failed to ensure that no glass bottles were brought into the event. The State allegedly also permitted unruly, violent and dangerous behavior to exist for an unreasonably long period of time and failed to intervene. Claimant alleges that if the State had intervened earlier, it could have prevented claimant from being injured.
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 ). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the state had notice of the essential facts constituting the claim; (3) whether the state had an opportunity to investigate the circumstances underlying the claim; (4) whether the state was substantially prejudiced; (5) whether the movant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 ). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
Before addressing the six statutory factors, the Court must determine whether claimant's cause of action is timely under CPLR Article 2 (Court of Claims Act § 10 ). Claimant's cause of action accrued on August 25, 2019 and the three year statute of limitations applicable to actions for personal injury applies (CPLR 214). As claimant filed the instant cross motion on June 30, 2021, it is timely under CPLR 214.
Turning then to the first factor in the Court's late claim analysis, claimant states that the claim was not filed within the limitations period set forth in the Court of Claims Act because movant was representing himself pro se at the time of the claim's filing and was therefore unfamiliar with the filing procedures in the Court of Claims. Claimant also states that he had difficulty retaining an attorney. Ignorance of the law, even where the claimant is proceeding pro se, is not an acceptable excuse for failing to timely file and serve a claim (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]). Nor is claimant's inability to secure counsel an acceptable excuse (Musto v State of New York, 156 AD2d 962, 962-963 [4th Dept 1989]). Therefore, this factor does not weigh in movant's favor.
The next three factors--defendant's notice of the issues, opportunity to investigate, and prejudice--are interrelated and therefore frequently considered together. Here, claimant argues that defendant had notice of the essential facts constituting the claim and an opportunity to investigate the claim because the State Police responded to the incident and claimant filed a report detailing his injuries. Claimant also alleges that defendant will not be prejudiced if the Court were to allow the late claim filing. Defendant does not address these three factors in its opposition papers. Therefore, the three aforementioned factors weigh in claimant's favor (see Davis v State of New York, UID No. 2018-032-20 [Ct Cl, Hard, J., Mar. 23, 2018]).
The fifth factor to be considered is whether claimant has an alternative remedy for relief. Claimant argues that there is not alternative remedy available to him. Defendant argues that claimant has alternative remedies available to him as he could sue the individual who threw the bottle at him or the producer of the event. As neither claimant nor defendant identified the individual who threw the bottle or the event producer, the Court finds that an alternative remedy has not been established. The Court therefore finds that this factor weighs in claimant's favor.
Turning then to the final factor, in order to establish a meritorious cause of action, claimant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 ; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
Defendant argues that claimant has not established the appearance of merit of the proposed claim because the State, as a landowner, is not responsible for unexpected and spontaneous criminal acts committed by third parties.
While the State is "not the insurer of a visitor's safety" it must "minimize foreseeable dangers on [its] property, including the criminal acts of third parties" (Maheshwari v City of New York, 2 NY3d 288, 294 ). Thus, where a landowner has reason to know that there is a likelihood of third-party conduct that could endanger the visitor, the landowner must provide reasonable protection (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 , citing Restatement, Torts 2d, § 344, Comment f; see also Petras v Saci, Inc., 18 AD3d 848, 848 [2d Dept 2005]). Here, claimant alleges that the State was aware that the concert crowd at Jones Beach State Park on the date that claimant was injured was unruly and dangerous and yet did not provide reasonable protection. Based upon the allegations contained in the proposed claim, the Court finds that claimant has established the appearance of merit of the proposed claim, which is a minimal burden for claimant to meet on a late claim application (Rizzo v State of New York, 2 Misc 3d at 834; see Wetter v State of New York, UID No. 2013-028-512 [Ct Cl, Sise, P.J., June 17, 2013]).
Lastly, the Court rejects defendant's argument that claimant failed to attach a proposed claim to his motion papers, as claimant's motion papers contain a document entitled "Notice of Claim". Although claimant's proposed claim (Schwartz Aff., Ex. B), is entitled "Notice of Claim", it is clear to the Court that this document is the proposed claim that claimant seeks to file and serve. The Court will not deny claimant's motion on this procedural ground.
Therefore, it is hereby:
ORDERED that the Court's motion (M-96122) is GRANTED. Claim number 134106 is DISMISSED; and it is further
ORDERED that, upon consideration of the six factors enumerated in Court of Claims Act § 10 (6), Claimant's motion for late claim relief (CM-96951) is GRANTED. Claimant is directed to file the proposed claim attached as Exhibit B to the Affirmation of Martin J. Schwartz, Esq. within sixty (60) days of the date that this Decision and Order is filed by the Clerk of the Court. The claim to be filed shall be entitled "CLAIM". In serving and filing the claim, claimant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
October 25, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims
1. Martin J. Schwartz, Esq., counsel for claimant, filed a notice of appearance on February 3, 2021.
2. Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.