Opinion
# 2012-049-033 Motion No. M-81387
07-23-2012
THOMAS D. GARDNER v. CITY UNIVERSITY OF NEW YORK
Synopsis
Claimant's late claim application arising out of a trip and fall on sidewalk outside of CUNY Hunter College granted. Case information
UID: 2012-049-033 Claimant(s): THOMAS D. GARDNER Claimant short name: GARDNER Footnote (claimant name) : Defendant(s): CITY UNIVERSITY OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): None Motion number(s): M-81387 Cross-motion number(s): Judge: David A. Weinstein Mirman, Markovits & Landau, P.C. Claimant's attorney: By: Thomas P. Markovits Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Janet L. Polstein, Assistant Attorney General Third-party defendant's attorney: Signature date: July 23, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Thomas Gardner moves this Court for permission to file a late claim pursuant to Court of Claims Act § 10(6). The proposed claim alleges that on December 12, 2009, claimant was injured when he tripped and fell as the result of an "upraised and defective" sidewalk outside Hunter College, at 904 Lexington Avenue near 68th Street in New York City (Aff. in Supp. Ex. D).
In addition to the proposed claim, which claimant verified, he submits copies of the following: two notices of intention addressed to the City University of New York ("CUNY") - one received January 27, 2010, and the other recieved February 5, 2010 (Aff. in Supp. Ex. A); portions of the deed to the property showing title in the Dormitory Authority of the State of New York ("DASNY") (Aff. in Supp. Ex. B); the answer in a related lawsuit brought by claimant in State Supreme Court (Aff. in Supp. Ex. C); the transcript of the testimony of claimant taken at his General Municipal Law § 50-h hearing (Aff. in Supp. Ex. E); photographs of the scene of the accident showing the section of pavement at issue (Aff. in Supp. Ex. F); and a General Municipal Law § 50-g notification filed by Big Apple Pothole and Sidewalk Protection Corporation with the City of New York Department of Transportation (the "Big Apple notification") advising of "defect(s)" at the subject location (which appears to bear a date stamp of October 23, 2003) (Aff. in Supp. Ex. G).
Gardner's late claim application was filed within the relevant statute of limitations, so that the Court has jurisdiction to grant relief under section 10(6). In determining whether such relief is appropriate, 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. These factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling (id.).
With respect to the existence of a valid excuse for the failure to timely serve and file a claim, claimant states that a claim was not initially served on CUNY and the Attorney General in this Court, because property records indicated that DASNY was owner of the property, and claimant believed that pursuant to New York City Administrative Code §7-210, DASNY as owner was responsible for the abutting public sidewalk.Claimant therefore commenced an action in State Supreme Court against DASNY and other governmental entities,and as a "'place holder' or 'just in case'" served a notice of intention on CUNY (Aff. in Supp. p. 2). Claimant states that during the pendency of the Supreme Court action, he learned that CUNY may be responsible for the area (App. in Supp. pp. 3-4). Specifically, claimant asserts that during depositions, counsel for DASNY took the position that it is not responsible for maintenance of the sidewalk despite holding title to the property. This position, moreover, finds support in at least one State Supreme Court decision (Aff. in Supp. p. 4, citing Morris v City of New York, 21 Misc 3d 758 [Sup Ct, Kings County 2008]). Since, according to claimant "it now appears that DASNY may not be responsible" for upkeep of the sidewalk at issue, claimant brought the instant motion (Aff. in Supp. p. 4).
Section 7-210, effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner.
The Supreme Court action is captioned: Thomas D. Gardner v City of New York, New York City Transit Authority and Dormitory Authority of the State of New York.
Claimant's confusion as to which entity to sue is generally not, however, a valid excuse for the purposes of section 10(6) relief(see Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]). Further, claimant's filings do not specify when he learned that DASNY would be disclaiming responsibility, and thus it is impossible to determine whether he had the opportunity to file a timely claim thereafter.As a result, this factor weighs against claimant's application.
In his reply, claimant contends that he was not "confused," but that DASNY's defense arises out of a "private agreement" between itself at CUNY (Reply Aff. at 2). The Morris decision, however, predates Gardner's Supreme Court action, and thus the legal basis for DASNY's position was available to claimant prior to his commencing suit.
Claimant's timely service of a notice of intention extends the time for filing his claim to two years after its accrual (Court of Claims Act § 10[3]). That extended period has now lapsed, necessitating the current motion.
Whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are closely related and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Defendant argues that it was "prejudiced by its inability to investigate" because the notice of intention served on the Attorney General and CUNY stated the location only as 904 Lexington Avenue, which "encompasses the entire building located at that address." Defendant states that while the notice of intention indicates that photographs of the accident scene are attached, none in fact were (Aff. in Opp. ¶ 8). Claimant asserts, however, that after realizing that a photograph had been inadvertently omitted from the first notice of intention served on CUNY, a second notice with a photograph appended was served on CUNY within 90 days of the incident (Reply Aff. at 4). The photograph, which is attached to claimant's papers, depicts the area involved and the defect at issue, and addresses defendant's contention on this score. In any case, CUNY "had notice of claimant's contemplated action and the timely opportunity to investigate, and . . . suffer[ed] no prejudice . . ." (Itwaru v City University of New York, UID No. 2003-030-902 [Ct Cl, Scuccimarra, J., Oct. 14, 2003]). These factors, therefore, support claimant's motion.
The standard to be applied when weighing the apparent merit of a proposed claim is articulated in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To appear meritorious, a claim "must not be patently groundless, frivolous, or legally defective," and 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" (id. at 11).
Defendant argues that claimant's application is defective because neither an affidavit of someone with knowledge nor medical records substantiating the injuries claimed were included in the submission. This contention is unavailing, since the claimant supports his allegations with a claim verified under oath, and the sworn testimony he gave at the 50-h hearing. There is no reason why an affidavit is of greater evidentiary value than such other sworn testimony (see Beasley v State of New York, UID No. 2000-019-509 [Ct Cl, Lebous, J., Apr. 4, 2000] [appearance of merit found based on deposition testimony submitted with late claim motion]). Moreover, in its opposition, defendant relies solely on the affirmation of counsel, who is without personal knowledge of the events that took place on December 12, 2009. Thus, claimant has provided sufficient evidentiary basis for the matters alleged in his proposed claim.
Defendant also contends that claimant has provided no evidence that defendant had either constructive or actual notice of the defect, and that such defect was in any event trivial and non-actionable. Photographs and testimony describing a defect may by themselves be sufficient, however, to demonstrate constructive notice (see Taylor v New York City Trans. Auth., 48 NY2d 903, 904 [1979] [court cannot say "as a matter of law, the evidentiary basis was insufficient to demonstrate constructive notice of the defect" where photographs of defect were entered into evidence, and it can be inferred from the "irregularity, width, depth and appearance of the defect apparent from the concrete surface exhibited in the photographs, that the condition had to have come into being over such a length of time that knowledge thereof should have been acquired by the defendant in the exercise of reasonable care"]); Ferlito v Great South Bay Assocs., 140 AD2d 408, 408 [2d Dept 1988] ["Photographs may be used to prove constructive notice of an alleged defect shown in the photographs if they are taken reasonably close to the time of the accident and there is testimony that the condition at the time of the accident was substantially as shown in the photographs"]). Here, the 50-h hearing transcript sets forth claimant's sworn testimony that he tripped on an elevation between two concrete slabs of between one and two inches (Tr. at 12), which testimony is supported by a photograph of the location where the incident took place. Whether or not such evidence will ultimately suffice to prove constructive notice or a non-trivial defect, these submissions present a reasonable basis for believing that claimant has a valid cause of action(see Cunningham v State of New York, UID No. 2012-015-292 [Ct Cl, Collins, J., Jan. 24, 2012] [late claim granted where movant submitted photographs of sidewalk where fall occurred; "the Court cannot at this junction conclude that it is too trivial to be actionable"]); Deutsch v City Univ. of New York, UID No. 2007-028-584 [Ct Cl, Sise, J., Dec. 21, 2007] [rejecting defendant's argument that late claim lacked merit because it failed to establish non-trivial defect or actual or constructive notice, as such are "matters that are properly considered at trial after both parties have had an opportunity to carry out discovery"]); Eckert v City Univ. of New York, UID No. 2003-016-057 [Ct Cl, Marin, J., Aug. 6, 2003] [negligence claim based on fall on raised portion of sidewalk has appearance of merit for purposes of late claim motion]).
In light of the above, I need not address the relevance of the Big Apple notification (see supra p. 2).
Defendant also argues that the proposed claim is defective because it describes the accident location only as 904 Lexington Avenue, which comprises an entire building, thereby rendering the proposed claim jurisdictionally defective under Court of Claims Act §11(b).
Section 11(b) provides, in relevant part, that the claim "shall state the time when and place where such claim arose . . . ."
Although the assessment of merit under section 10(6) is subject to different legal standards then those applicable to a filed claim under section 11(b) (see Richards v State of New York, UID No. 2006-036-504 [Ct Cl, Schweitzer, J., Mar. 27, 2006]), defendant's argument is nonetheless relevant to the present motion, in that a late claim motion may be denied if such claim will be subject to dismissal upon filing, and such filing would therefore be futile (see Ortiz v State of New York, 78 AD3d 1314 [3rd Dept 2010] ["it would be futile to permit a defective claim to be filed"]; Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993] [same]). But in assessing the merits of a proposed late claim, the court looks to "all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of 'apparent merit' and is not confined to the text of the proposed claim itself" (Mamedova v City Univ. of N.Y., 13 Misc 3d 1211 [A] at *2 [Ct Cl 2006]).
Claimant has appended to his motion photographs of the accident scene showing the precise location where the accident occurred, and there is thus enough information in claimant's filing to satisfy the requirement of section 11(b) (see Seales v State of New York, UID No. 2011-030-600 [Ct Cl, Scuccimarra, J., Oct. 6, 2011] [proposed claim when read together with supporting documents satisfies the requirement that a claim has the appearance of merit]). Thus, it cannot be said that allowing claimant to proceed would be futile. In filing his claim in accordance with this opinion, claimant can remedy any technical defect therein, and ensure that it meets the requirements of section 11(b).
Finally, defendant argues that claimant has an alternate remedy, as he brought suit in State Supreme Court. As indicated above, however, it is not clear on the present record that such an alternative is viable, as claimant asserts that DASNY has disavowed responsibility for maintaining the sidewalk, and such disavowal has support in at least one Supreme Court decision. The State does not seek to rebut this contention in its submission. There is, then, at least an open question as to which governmental entity ultimately bears responsibility for maintenance of the sidewalk, and the pendency of claimant's Supreme Court action does not militate against granting claimant's motion (see Marcus v State of New York, 172 AD2d 724, 725 [2d Dept 1991] [claim has apparent merit for purpose of section 10 [6] "although a sharp but undeveloped factual issue exists as to which governmental entity bears responsibility for maintenance of the roadway where the accident occurred"]).
Accordingly, having reviewed the submissions and having considered all of the factors enumerated in the Court of Claims Act § 10(6), IT IS ORDERED that motion no. M-81387 be granted, and that within thirty (30) days of the filing of this Decision and Order, claimant shall serve and file a verified claim substantially in the form of the proposed claim annexed as exhibit D to his moving papers that complies with the pleading requirements of Court of Claims Act §11(b).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.
The claim shall provide specific information as to the "place where" the "claim arose," so as to comply with section 11(b).
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July 23, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers considered:
1. Claimant's Notice of Motion, Affirmation and annexed exhibits.
2. Defendant's Affirmation in Opposition.
3. Claimant's Affirmation in Reply.