Opinion
# 2017-044-523 Claim No. None Motion No. M-89765
03-13-2017
ROBERT J. PLEVYAK v. THE STATE OF NEW YORK
ROBERT J. PLEVYAK, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Late claim relief denied without prejudice.
Case information
| UID: | 2017-044-523 |
| Claimant(s): | ROBERT J. PLEVYAK |
| Claimant short name: | PLEVYAK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-89765 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | ROBERT J. PLEVYAK, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 13, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant moves for permission to file and serve a late claim to recover for personal injuries allegedly received when he fell while entering the men's room at a rest stop located on State Route 17 (Route 17) in Roscoe, New York. Movant alleges that the tile floor became wet and slippery due to falling snow being tracked inside. Defendant State of New York (defendant) opposes the motion. Movant replies.
As an initial matter, the Court notes that movant has not provided an affidavit in support of this motion as required by CPLR 2214 and the Uniform Rules for the Court of Claims (22 NYCRR) § 206.8 (a) (see 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 2214.02; see also Pettus v State of New York, Ct Cl, Mar. 26, 2007, Schaewe, J., Claim No. 112504, Motion No. M-72699). Accordingly, movant's motion could be denied solely on this procedural basis. However, the Court will not deny the motion on this basis, particularly given the information contained in the notice of motion and the verified proposed claim with attached documentation, including a copy of movant's completed Department of Transportation (DOT) administrative small claim form.
Movant has also submitted several pages containing court rules and motion practice instructions apparently printed from the Court of Claims website, which included handwritten information pertinent to his proposed claim.
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). Movant asserts that the allegedly wrongful conduct occurred on December 13, 2014. The statute of limitations for a negligence cause of action is three years (CPLR 214 [5]). Accordingly, this motion, mailed on December 8, 2016, is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or to
serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and
6) movant has any other available remedy.
Movant states that he had difficulty contacting anyone at DOT for several months, but that he eventually spoke with Handy Eugene, Small Claims Coordinator for DOT Region 9. Movant indicates that he thereafter filed an administrative small claim for his medical expenses. However, because movant's damages exceed $5,000, the administrative claim was returned to him and he was advised to contact the Court of Claims. Movant argues that because he waited for DOT to process the administrative claim, the delay in filing this claim is justified. Movant's ignorance of the requirements of the Court of Claims Act and the fact that he initially filed an administrative claim, particularly in light of the lack of any evidence that defendant led him to believe he was required to proceed administratively prior to commencing an action in the Court of Claims, are not adequate excuses for his delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [Ct Cl 1978]). Accordingly, this factor weighs against claimant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Movant contends that he provided notice to Bob Farrell, the rest area attendant, on the same day he was injured. Conversely, defendant argues that it did not receive notice of the essential facts until this motion was served approximately two years after the claim accrued. In order to charge defendant with notice, a movant must establish that someone in authority (such as a supervisory-level official) in the department or agency allegedly responsible for the incident or someone in the legal department, such as the attorney general, has been timely provided with the facts giving rise to the claim (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 7-8 [Ct Cl 1977]; see also Henderson v State of New York, UID No. 2004-018-282 [Ct Cl, Fitzpatrick, J., Mar. 16, 2004]; Avila v State of New York, 131 Misc 2d 449 [Ct Cl 1986]). Although movant provided notice of the incident to Farrell, the rest area attendant, there is no indication that Farrell had any supervisory authority or that he provided the information to someone with such authority. However, on June 8, 2015, movant mailed his administrative claim to DOT Region 9 Small Claims Coordinator, Handy Eugene, who clearly had supervisory authority. The Court finds that movant's administrative claim provided defendant with appropriate notice of the incident within six months of its occurrance. Accordingly, the factor of notice weighs in favor of movant.
Defendant may also be charged with notice if the incident itself is the type of event that would, in normal course, be investigated by supervisory personnel (Anadio v State of New York, UID No. 2002-032-032 [Ct Cl, Hard, J., Mar. 31, 2003]). A slip and fall on a wet bathroom floor does not appear to be this type of incident.
Defendant contends that because of the lack of timely notice and the transient nature of the condition, defendant had no opportunity to investigate the underlying facts and as a result, the two-year delay in making this motion has caused substantial prejudice. This argument is not persuasive. In his administrative claim, movant alleges that he exited Route 17 to use the Roscoe rest area at approximately noon on December 13, 2014. He states that it was snowing at the time and when he walked into the men's room, he "immediately slipped + fell on the snow/wet tile floor." He asserts that he hit his face, nose, forehead and teeth on the floor and was bleeding. He indicates that after some time had passed, a senior man arrived, unlocked a room and gave him gauze and bandages for his injuries. Movant states that this man (Bob Farrell) gave him a note with his (Farrell's) name and a phone number for DOT. Defendant has had notice of the time of the incident, the facts underlying the claim, and the identity of an employee with some knowledge of the incident as well as an opportunity to investigate the matter since the administrative claim was mailed in June 2015. Moreover, the transient condition of the snowy/wet floors in the men's room would not have remained for the 90-day period of the Court of Claims Act § 10 (3). Accordingly, defendant is no more prejudiced now than it would have been if movant had timely served a notice of intention or timely filed and served a claim. Thus, the two factors of opportunity to investigate and the lack of substantial prejudice also weigh in favor of movant.
Proposed Claim, at 15.
Another factor to be considered is whether movant has any other available remedy. Movant is seeking damages for personal injuries allegedly suffered when he fell at a State highway rest stop. Defendant concedes that there is no other available remedy. This factor also weighs in favor of movant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana, 92 Misc 2d at 10). In order to establish a meritorious claim, a movant must demonstrate 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 (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992]).
The State, as a landowner, has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]; see also Clairmont v State of New York, 277 AD2d 767 [3d Dept 2000], lv denied 96 NY2d 704 [2001]). To prevail on this claim, movant must establish by a preponderance of the credible evidence that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that movant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]).
As set forth previously herein, movant alleges that it was snowing when he arrived at the rest area. He asserts that when he walked into the men's room, he immediately slipped and fell on the tile floor which had become wet and slippery, presumably from the snow outside being tracked inside. Movant indicates that defendant was negligent in not having any employees present to attend to the wet floors at the time of the incident.
Movant's factual allegations that snow had been tracked into the men's room and caused the floor to become wet and slippery could be sufficient to establish the existence of a dangerous condition. However, movant's papers are completely devoid of any allegations that defendant had notice, either actual or constructive, of this allegedly dangerous condition. Moreover, "a generalized awareness that water [or snow] could be tracked in during a storm [does] not constitute constructive notice of the specific condition leading to [the] fall" (Mitchell v Uniforms USA, Inc., 82 AD3d 1474 [3d Dept 2011]). Accordingly, the crucial factor of merit weights against movant.
"[W]here 'the excuse offered for the delay is inadequate and the proposed claim is of questionable merit' "(Matter of Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006], quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]), denial of a late claim application is appropriate (see Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). Although four of the six statutory factors weigh in favor of movant, the crucial issue of merit weighs against him. Movant's motion for permission to file and serve a late claim is denied, without prejudice to making a second motion for such relief upon proper papers establishing all elements of the cause of action.
March 13, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on movant's motion: 1) Notice of Motion filed December 12, 2016, and attachments. 2) Affirmation in Opposition of Douglas H. Squire, Assistant Attorney General, dated January 30, 2017, and attached exhibit. 3) Claimant's letter Reply dated February 4, 2017, and attachments.