Opinion
# 2014-048-140 Claim No. NONE Motion No. M-84479
06-04-2014
DAVID RAMAZZOTTI v. THE STATE OF NEW YORK
CHERUNDOLO LAW By: John C. Cherundolo, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney
Synopsis
The Court granted Claimant's motion seeking permission to file a late claim pursuant to Court of Claims Act Section 10 (6).
Case information
| UID: | 2014-048-140 |
| Claimant(s): | DAVID RAMAZZOTTI |
| Claimant short name: | RAMAZZOTTI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-84479 |
| Cross-motion number(s): | |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | CHERUNDOLO LAW By: John C. Cherundolo, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | June 4, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On January 8, 2014, David Ramazzotti (Claimant) filed a motion for permission to file a late Claim, pursuant to Court of Claims Act § 10 (6), seeking to recover damages for personal injuries he sustained on July 13, 2012 at approximately 10:00 a.m. after falling on the bathroom floor of Dorm 4C while an inmate at Mid-State Correctional Facility (Mid-State) operated by the Department of Corrections and Community Supervision (DOCCS). Claimant alleges, among other things, that Defendant failed to maintain a safe environment and failed to warn of certain hazards when it permitted, contrary to facility protocols, an unsupervised inmate work crew to apply certain chemicals to a clogged sink, which subsequently overflowed and drained onto the bathroom floor, causing Claimant to slip and fall (see Claimant's Affidavit, ¶ 5; Claim, ¶ 2).
Although denominated a Notice of Claim, the Court treats and refers to the document attached to the application as a proposed Claim.
As a result, Claimant alleges that he sustained injuries to his left knee and that an MRI, conducted on November 8, 2012, "indicated findings consistent with, among other things, a complete tear of the anterior cruciate ligament, a severe strain of the posterior [cruciate] ligament, and a complex tear of the posterior horn and posterior body of heel meniscus" (Claimant's Affidavit, ¶ 12). Defendant opposes Claimant's motion.
In an action to recover damages to property or for personal injuries, Court of Claims Act § 10 (3) requires that a Claim be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim unless, within that same time frame, a Notice of Intention to File a Claim (Notice of Intention) is served upon the Attorney General, in which event the Claim shall be filed and served within two years after its accrual. Failure to timely serve the Attorney General with the Notice of Intention, or to timely file and serve the Claim, divests the Court of subject matter jurisdiction (see Alston v State of New York, 97 NY2d 159, 164 [2001]; Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013]). However, if a claimant fails to timely file or serve the Claim, or fails to timely serve the Notice of Intention, he or she may move the Court for permission to file and serve a late Claim, so long as the applicable statute of limitations set forth in article 2 of the CPLR has not expired (see Court of Claims Act § 10 [6]). As is relevant to this action, CPLR 214 (5) requires that an action to recover damages for personal injuries be commenced within three years of the date of the injury. Accordingly, since the Claim is alleged to have accrued on July 13, 2012, Claimant's application for late Claim relief is made within the applicable statute of limitations.
In addressing the substance of Claimant's motion, the Court of Claims is vested with broad discretion to grant or deny an application that seeks permission to file a late Claim (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009]) after consideration of, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 the state; and whether the claimant has any other available remedy
(Court of Claims Act § 10 [6]). However, "the presence or absence of any one factor should not be deemed controlling" (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009] [internal quotation marks and citation omitted]).
With respect to the excusable delay factor in Court of Claims Act § 10 (6), Claimant contends that, after he was released from DOCCS custody in January 2013, he retained Martin J. Rothschild, Esq., to prosecute his Claim. However, in April 2013, Mr. Rothschild was convicted of a felony and subsequently disbarred (see Matter of Rothschild, 112 AD3d 1383 [4th Dept 2013]). Claimant asserts that his case was thereafter transferred to his current counsel - John C. Cherundolo, Esq. - who, in turn, states that the lengthy process in transferring the matter to him and in obtaining records to evaluate the matter were beyond Claimant's control. Specifically, Counsel states that, while he received Claimant's medical records from Mid-State in July 2013, his FOIL request seeking certain incident reports was not responded to until September 2013. Counsel also advises that there was a delay in executing papers in support of the instant application as Claimant was re-confined to the Jamesville Penitentiary. In opposition, Defendant argues that Claimant has not established a sufficient excuse for the delay.
In this matter, the incident is alleged to have accrued on July 13, 2012 (see Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610, 610 [2d Dept 2009]). Claimant does not actually provide an excuse as to why a Claim, or Notice of Intention to File a Claim, was not timely filed within 90 days of that date, and ignorance of the law is not an acceptable explanation for such a delay (see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]). While not a bar to his application, the excusable delay factor does not weigh in Claimant's favor.
In next addressing the section 10 (6) factors of notice of essential facts, opportunity to investigate, and substantial prejudice to the State, Claimant alleges that immediately after he fell, Officer Buttons responded and called 911 (see Claimant's Affidavit, ¶ 9). Claimant's counsel asserts that the State had notice of the essential facts constituting the Claim based on, in part, the medical records attached to the application, which note that on July 13, 2012, Claimant fell while coming out of the bathroom (see Claimant's Affidavit, Exhibit D). While Defendant contends that it had no information by which to conduct a reasonable investigation and that it would be prejudiced by the filing of a late Claim in this matter, Defendant submitted only the affirmation of an attorney with no personal knowledge of the facts, which is insufficient to substantiate its allegations (see Matter of Powell v State of New York, 187 AD2d 848, 848-849 [3d Dept 1992]). Accordingly, the Court weighs these factors in Claimant's favor.
Next, notwithstanding Defendant's assertion that Claimant has an alternative remedy in the form of an action against the inmate work crew who committed the alleged negligence (see Affirmation of Thomas Trace, Esq., ¶ 9), Claimant's injury is allegedly due to Defendant's negligence in, among other things, failing to maintain the premises in a safe condition, failing to warn of a dangerous condition and in negligently supervising its crew. When the State "undertakes to perform one of its functions through the medium of [ ] inmates and directs them . . . to perform certain duties under the immediate supervision of a State employee," those inmates become agents of the State and the State will be held liable for the tortious acts committed in the performance of such duties (Washington v State of New York, 277 App Div 1079, 1079 [3d Dept 1950]; see Morell v Balasubramanian, 70 NY2d 297, 300, 301 [1987]["A suit against a State officer will be held to be one which is really asserted against the State when it arises from actions or determinations of the officer made in his or her official role and involves rights asserted, not against the officer individually, but solely against the State"]). Accordingly, the Court concludes that this factor weighs in Claimant's favor.
While the final factor applicable to Claimant's motion - the appearance of merit - may arguably be the most crucial factor in section 10 (6) (see Matter of Martinez v State of New York, 62 AD3d at 1226), it does not require Claimant to definitively establish the merits of the proposed Claim. Rather, Claimant needs to establish that the proposed Claim is not "patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]).
While Defendant has a duty to maintain its property in a reasonably safe condition (Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]), it is not an "insurer of inmate safety, and negligence will not be inferred from the mere occurrence of an accident" (Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]). In a premises liability case such as this, Claimant must establish that there was an unsafe or dangerous condition on the premises, and that Defendant either created the dangerous condition, or had actual or constructive notice of a dangerous condition and failed to take appropriate remedial action (see Quintanilla v State of New York, 94 AD3d 846, 847 [2d Dept 2012]). In this matter, Claimant alleges, among other things, that, on July 13, 2012 at approximately 10:00 a.m., Claimant slipped and fell on the "overflow material from a sink being worked on by an unsupervised inmate work crew located in [his] assigned Dorm Unit 4C" (Claim, ¶ 2), and that Defendant "creat[ed] or permitt[ed] to exist a dangerous condition without providing any warning" (Claim, ¶ 3). Claimant also alleges that internal protocols required that such work be performed by a licenced civilian professional rather than the unsupervised, untrained work crew (Claim, ¶ 3). In opposition, Defendant has not disputed the factual allegations of the proposed Claim, but argues that those presented are insufficient. In noting that Claimant is not required to definitively establish the merits of his Claim at this juncture, the Court finds that Claimant has set forth sufficient factual allegations demonstrating that there is reasonable cause at this stage of the litigation to believe that a cause of action for negligence may exist.
Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), the Court grants Claimant's Motion No. M-84479 to late file his proposed Claim pursuant to Court of Claims Act § 10 (6). Accordingly, within sixty (60) days of the date of filing of this Decision and Order, Claimant shall file with the Clerk of the Court the proposed Claim against the State and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing the Claim, Claimant is directed to follow all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims.
June 4, 2014
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Notice of Motion, filed January 8, 2014;
Claimant's Affidavit, sworn to on December 30, 3013, with Exhibits A-D;
Affirmation of John C. Cherundolo, Esq., dated January 13, 2014, with Exhibits 1-4;
Notice of Claim, verified on December 30, 2013;
Memorandum of Law, dated January 3, 2014;
Affidavit of Service, sworn to on January 3, 2014;
Correspondence from John C. Cherundolo, Esq, received February 3, 2014;
Affirmation of Thomas Trace, Esq., dated February 21, 2014, with Affidavit of Service, sworn to on February 21, 2014.