Opinion
# 2015-049-044 Claim No. 125294 Motion No. M-86483 Cross-Motion No. CM-86761
07-23-2015
JACK EDWARDS v. CITY UNIVERSITY OF NEW YORK and THE DORMITORY AUTHORITY OF THE STATE OF NEW YORK
La Sorsa & Beneventano By: Gregory M. La Sorsa, Esq. Eric T. Schneiderman, New York State Attorney General By: Joseph L. Paterno, Assistant Attorney General and Suzette Corinne Rivera, Assistant Attorney General
Synopsis
Case information
| UID: | 2015-049-044 |
| Claimant(s): | JACK EDWARDS |
| Claimant short name: | EDWARDS |
| Footnote (claimant name) : | |
| Defendant(s): | CITY UNIVERSITY OF NEW YORK and THE DORMITORY AUTHORITY OF THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125294 |
| Motion number(s): | M-86483 |
| Cross-motion number(s): | CM-86761 |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | La Sorsa & Beneventano By: Gregory M. La Sorsa, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Joseph L. Paterno, Assistant Attorney General and Suzette Corinne Rivera, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 23, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Jack Edwards commenced this action by filing a claim on November 24, 2014, naming as defendants the City University of New York ("CUNY"), and the Dormitory Authority of the State of New York ("DASNY"). The claim alleges that Edwards injured himself at Medgar Evers College ("Medgar Evers") on August 21, 2014, when he "was caused to collide with an unmarked, undesignated, poorly identifiable glass panel" in the area of the Medgar Evers pool.
In his submission, claimant at times refers to a claim as a "Notice of Claim" (see e.g. Aff. in Supp. ¶ 12, 15) No such document is recognized in this Court, and this opinion will use the term "claim" to avoid any confusion.
The affidavit of service indicates only that the claim had been "served" on the Court of Claims. Neither defendant filed an answer, and on March 25, 2015, this Court issued an Order to Show Cause ("OTSC") directing claimant to demonstrate why this action should not be dismissed on the grounds that it lacked evidence of proper service (Motion No. M-86483). The Office of the Attorney General ("OAG") responded via the affidavit of clerk Cynthia Watson, stating that the OAG had no record of being served with the claim in question (Attorney General's Aff. in Response to OTSC Ex. A 1, 4-6). For his part, claimant submitted a cross motion to extend the time to serve his claim pursuant to CPLR 306-b, or in the alternative, to file a late claim pursuant to Court of Claims Act § 10(6). In regard to the latter, claimant requests that the claim he filed in November 2014 be deemed valid nunc pro tunc (La Sorsa Aff. ¶ 34).
The cross motion is supported by the affirmation of counsel, the affidavits of claimant and paralegal Daniel Ruiz, and various documentary exhibits. Claimant also submits a proposed claim, which would add the State of New York as a defendant.
In his affidavit, claimant sets forth the following account: On August 21, 2014, at 8:10 p.m., Edwards was registering for a swimming class at Medgar Evers, in an area located directly in front of the pool (Edwards Aff. ¶ 2). After Edwards signed the appropriate paperwork, he "pivoted to [his] left with [his] left foot and took a step forward with [his] right, towards what [he] perceived to be open and unobstructed space leading to the pool" (id. ¶ 3). Instead, his right knee and foot hit a clear glass panel, which shattered and lacerated his arm. Edwards attributes the accident to the lack of any "label, decal or other marking which identified [the barrier] as a panel as glass." (La Sorsa Aff. ¶ 4). He contends that the failure to post any such marking was in violation of Labor Law § 241-b, Industrial Code Rule 47, and 2 RCNY. § 4-02 (La Sorsa Aff. ¶ 4).
In regard to service of the claim, the affirmation of claimant's counsel states as follows: the claim was sent to this Court by certified mail on November 11, 2014, and was filed on November 14, 2014, within 90 days of accrual (La Sorsa Aff. ¶ 6 & Ex. A at 4). The claimant's papers further show that the claim was also served on CUNY by certified mail on November 14, 2014 (La Sorsa Aff. ¶¶ 6-7, Ex. C). Claimant avers that he was unaware of "possible non-service of the Attorney General" until he received the OTSC, at which point he reviewed his records and determined that "the Attorney General was inadvertently not served with a copy of the Notice of Claim [sic]" (La Sorsa Aff. ¶¶ 8-9). He provides the affidavit of Ruiz, the paralegal responsible for serving the Attorney General, which is consistent with this account.
Claimant avers that he neglected to include the required filing fee with his initial submission of the claim to this Court, but upon being notified by the Court of this error, promptly remedied this deficiency by forwarding a new claim with the filing fee included on November 21, 2014, three days past the 90-day deadline to file a claim. He offers return receipts showing that this new claim was received by the Court on November 24, 2014 (La Sorsa Aff. ¶ 5, Ruiz Aff. ¶ 7).
Defendants have submitted the affirmation of an assistant attorney general in opposition to claimant's motion. Therein, she argues that DASNY is the owner of the property in question and the entity responsible for the construction of Medgar Evers' facilities (Rivera Aff. ¶ 12). In support of this contention, defendants provide a deed showing that DASNY acquired the Medgar Evers property in 1971, and screenshots from two websites that, they claim, demonstrate that DASNY was responsible for recent renovations to Medgar Evers College's facilities, including renovations to the pool complex where the incident took place (Aff. in Opp. Ex. A at 2-6).
Defendants further argue that neither DASNY nor the State are proper parties to this proceeding, relief under section 306-b is unavailable in this Court, and the balance of factors set forth in section 10(6) weighs against granting claimant's motion.
Edwards has submitted a reply affirmation. In response to defendants' argument that the party responsible for the property was DASNY, not CUNY, he makes two rejoinders. First, he alleges that "there was a CUNY representative stationed precisely at the location where Mr. Edwards was cause[d] to walk through the unmarked pane of glass, and . . . CUNY completely investigated this incident" (Reply Aff. ¶ 6). Second, he attaches screenshots of the Medgar Evers College pool's website and points out that they do not feature any references to DASNY (Reply Aff. ¶¶ 11, 12 & Ex. A). On this basis, he argues that CUNY "is clearly in possession [sic] and running the facility" (Reply Aff. ¶ 10).
Discussion
I. Dismissal
Under Court of Claims Act § 10(3), a claim for personal injury based on the State's negligence must be "filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." The failure to timely comply with the service and filing requirements of the Court of Claims Act gives rise to a jurisdictional defect compelling dismissal (see Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]). The fact that claimant served CUNY does not relieve him of the need to serve the attorney general, in order to vest the Court with jurisdiction (see Johnson v New York State, 71 AD3d 1355 [3d Dept 2010] [service upon Thruway Authority does not relieve claimant of need to also serve Attorney General]).
Claimant cannot avoid these requirements by relying on CPLR 306-b. That provision states, in relevant part: "Service of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action or proceeding . . . . If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." As is apparent from the above, this provision sets forth the time period for service in Supreme Court, in which service may follow filing by four months. These rules do not apply in the Court of Claims, which as noted above has its own deadlines for filing and service. As a result, section 306-b does not apply here, and claimant's application for relief under this provision is denied (see Summers v State of New York, UID No. 2008-038-581 [Ct Cl, DeBow, J., Jan. 22, 2008]; Louis v State of New York, UID No. 2007-030-568 [Ct Cl, Scuccimarra, J., Sept. 19, 2007]; see also Court of Claim Act § 8 ["The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article"] [emphasis added] & § 9[9] [CPLR applies in Court of Claims "except as otherwise provided by this act or by rules of this court"]).
II. Late Claim
As noted, claimant asks that, in the event his pending claim is dismissed for improper service, he be granted leave to file a late claim. Since his application was filed within the relevant statute of limitations, the Court has jurisdiction to grant such relief under Court of Claims Act §10(6). In ruling on this application, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those factors are whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the claimant has any other available remedy.
In assessing these factors, I note initially that there is no potentially viable claim pled against DASNY or the State. This Court lacks jurisdiction over the former (see Waldstreicher v State of New York, UID No. 2006-030-502 [Ct Cl, Scuccimarra, J., Jan. 9, 2006]; see also Story House Corp. v State of N.Y. Job Dev. Auth., 37 AD2d 345, 347 [3d Dept 1971] ["the enabling statutes for the Dormitory Authority contain no specification by the Legislature granting any jurisdiction to the Court of Claims"]). As to the latter, neither the claim nor any of Edwards' submissions set forth any allegations against New York State. I therefore assess the various section 10(6) factors only in regard to CUNY.
As to the excuse for not timely serving the claim, claimant's counsel states only that he was "unaware" of the failure to serve the Attorney General. Attorney error, however, is not a valid excuse under section 10(6) (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009]). This factor therefore weighs against claimant.
The question of whether CUNY had notice of the essential facts, had an opportunity to investigate, and would be prejudiced by the granting of this application are closely related and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). There is no dispute here that CUNY was served with the claim within 90 days of accrual. Moreover, it was fully aware of the accident at the time it occurred, as the CUNY Department of Public Safety prepared an incident report (see La Sorsa Aff. Ex. D). Finally, CUNY has not set forth any possible prejudice it would suffer from claimant's delay in properly commencing this action. These factors therefore weigh in claimant's favor.
The key question on this motion is whether it has the appearance of merit. To establish a cause of action that appears meritorious, claimant has the burden of showing that (1) the proposed claim "must not be patently groundless, frivolous, or legally defective," and (2) the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In applying this standard, "the court looks at all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of 'apparent merit'" (Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A] [Ct Cl 2006], at 2).
Claimant supports his assertion of merit through his own affidavit describing the incident and his injuries, the report produced in the course of CUNY's Department of Public Safety's investigation of the incident, photographs of the glass panel taken in the immediate aftermath of the incident, medical records of claimant's care, and photographs of claimant's injuries (Edwards Aff., La Sorsa Aff. Exs. D, G & L). As noted, claimant alleges that the failure to mark the sidelights to the entryway to the pool violated Labor Law § 241-b, Industrial Code Rule 47, and 2 R.C.N.Y. § 4-02. Section 241-b provides:
Claimant also highlights the fact that Medgar Evers gave him a refund of his registration fee for the swimming class for which he had been signing up on the day of the incident, but it is not clear in what way this is intended to support either his argument against prejudice to the defendant or his argument as to the merit of his claim (La Sorsa Aff. ¶ 20, Ex. E).
"All transparent glass doors in mercantile establishments and in public and commercial buildings and structures shall be marked in such manner as shall be calculated to warn persons using the same that such doors are glass doors. The board shall make such rules as it may deem proper or necessary to carry into effect the provisions of this section."
Rule 47 sets forth regulations implementing this provision, while section 4-02 contains a more detailed mandate applicable to the City of New York, which also provides that "[t]ransparent glass doors and fixed adjacent transparent glass sidelights shall be marked in two areas on the glass surface thereof" (2 RCNY § 4-02[c][1]).
CUNY makes two arguments against any appearance of merit. First, it argues that because DASNY is the owner of the property, it is the only party that may properly be sued for the failure to comply with the statute and regulation governing placement of notice on glass doors and sidelights. Second, it contends that claimant has failed to prove that CUNY "created the dangerous condition, or that CUNY had actual or constructive notice of a dangerous condition" (Aff. in Opp. ¶¶ 11, 12).
As to the first point, while CUNY has presented unrebutted evidence that DASNY owns the site at issue, this alone is not enough to show that the claim has no appearance of merit. The implementing regulations for section 241-b "place the duty of compliance with the requirement with '[t]he owner or affected tenant or both of any building'" (Griffin v State of New York, 83 AD3d 1357, 1358 [3d Dept 2011], quoting 12 NYCRR 47.6). Thus, such duty is "delegable," and may lie with either the owner or tenant, depending on the terms of the lease (id.).
Here, the claimant has presented evidence that an injury occurred at a facility operated by CUNY. CUNY has not presented any evidence as to whether the party that appears to be the owner (DASNY) or the entity that appears to be the tenant (CUNY) has responsibility for compliance with section 241-b. As a result, I find that defendant's proof of ownership alone is insufficient to show the claim is not meritorious, at this stage of the proceeding.
Defendant's second argument also does not undermine the potential merit of the claim. Claimant's pleading does not merely rely on common law negligence, but on the violation of a state statute. In Feisthamel v State of New York (89 AD2d 756 [3d Dept 1982]), the Court found that the violation of section 241-b "is negligence if it causes or contributes to the happening of the accident." In essence, the Court found that the failure to comply with section 241-b - if that is what occurred here - constitutes "negligence per se," and claimant need not make a showing of notice (see Elliot v City of New York, 95 NY2d 730, 734 [2001] ["As a rule, violation of a State statute that imposes a specific duty constitutes negligence per se . . . ."]).
Feisthamel also makes clear that despite the presence of section 241-b in the Labor Law the protections of the statute apply to the public as a whole, and not only to those working on the site.
In light of the foregoing, I find that the claim has the appearance of merit.
Finally, given that CUNY's submission appears to establish DASNY's ownership of the property, I find that claimant has an alternative remedy in a suit against DASNY in Supreme Court. Nevertheless, the balancing of the factors above tips in claimant's favor, and I therefore grant his application to file a late claim under section 10(6).
Claimant asks that I allow him to forego a new filing, and instead deem his claim to be timely filed nunc pro tunc and permit service thereof on the Attorney General. The Court of Claims Act, however, makes no provision for such a procedure (see Pierre v State of New York, UID No. 2013-049-061 [Ct Cl, Weinstein, J., Nov. 7, 2013]).
In light of the foregoing, it is hereby
ORDERED that Claim No. 125294 is dismissed pursuant to motion No. M-86483; and it is further
ORDERED that claimant's cross motion no. CM-86761 is granted to the extent it seeks late claim relief pursuant to section 10(6) of the Court of Claims Act, and that within 30 days of the filing of this Decision and Order, claimant shall serve and file a properly verified claim in the form of the proposed claim annexed as exhibit A to his moving papers, entitling it Claim, and naming only the City University of New York as the defendant. In serving and filing the claim, claimant shall comply with all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a.
July 23, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers Considered: 1. Court's Order to Show Cause, dated March 25, 2015; 2. Defendants' Affirmation, dated April 22, 2015, with Exhibit A annexed thereto; 3. Claimant's Notice of Cross Application, dated May 27, 2015, with Exhibits A through L annexed thereto; 4. Defendants' Affirmation in Opposition, dated June 8, 2015, with Exhibit A annexed thereto; and 5. Claimant's Reply Affirmation, dated June 15, 2015, with Exhibit A annexed thereto.