Opinion
# 2015-045-003 Motion No. M-85813
02-13-2015
GERTRUDE ROTH v. THE STATE OF NEW YORK
Cellino & Barnes, P.C. By: George R. Gridelli, Esq. Hon. Eric T. Schneiderman, Attorney General By: Theresa N. Wilson, Assistant Attorney General
Synopsis
Late claim motion, trip and fall while stepping off curb adjacent to state roadway, denied pursuant to Highway Law § 140(18).
Case information
| UID: | 2015-045-003 |
| Claimant(s): | GERTRUDE ROTH |
| Claimant short name: | ROTH |
| 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-85813 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Cellino & Barnes, P.C. By: George R. Gridelli, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Theresa N. Wilson, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 13, 2015 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Attorney's Affirmation in Support with annexed Exhibits and Defendant's Affirmation in Opposition with annexed Exhibits A-D.
Claimant, Gertrude Roth, has brought this motion seeking permission to file a late claim pursuant to Court of Claims Act (CCA) § 10 (6). Defendant, the State of New York, has opposed this application.
Claimant alleges that on November 18, 2013 she was walking on the sidewalk abutting Sunrise Highway in Lynbrook. When she reached the intersection of Sunrise Highway and Roosevelt Street, she stepped off the curb onto the surface of the Roosevelt Street roadway. Claimant alleges that due to the height of the sidewalk and curb at that location she tripped and fell.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [3d Dept 2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10 (6) (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.
Claimant does not offer any legally acceptable excuse for the delay in the filing of a claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.
The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Claimant states that the defective condition of the sidewalk still exists and that the photographs attached to the motion accurately portray the condition of the sidewalk at the time of the accident. Additionally, while the eleven month delay in the filing of the claim was significant, defendant has failed to articulate how it was meaningfully prejudiced by this delay. Thus, after weighing all the circumstances involved in the present action, these factors are found to be in claimant's favor.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order for a claim to "appear to be meritorious": (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).
Claimant has failed to establish that the claim is meritorious. Claimant merely speculates that the State is responsible for, inter alia, the maintenance of the sidewalk and curb at issue.
Claimant's position is belied by the plain language of State Highway Law § 140 (18) which states in relevant part that the town superintendent shall, "[m]aintain all sidewalks in the town constructed by the state adjacent to state highways." Thus, even though Sunrise Highway is a State roadway, the sidewalk and curb adjacent to the roadway is to be maintained by the town (Flynn v Town of N. Hempstead, 97 AD2d 430 [2d Dept 1983]).
Defendant also submitted an Affidavit from Elizabeth Chamakkala, the Regional Claims Engineer for the New York State Department of Transportation, wherein she affirms that defendant does not maintain the curb adjacent to Sunrise Highway. Additionally, it appears from the facts as alleged and photographs submitted that claimant fell while crossing Roosevelt Street. Mrs. Chamakkala attests to the fact that Roosevelt Street is not owned, controlled or maintained by defendant.
The last factor to be assessed is whether claimant has any other available remedy. It appears from the facts of this case that claimant has a viable claim in Supreme Court. Therefore, this factor is found to be in defendant's favor.
Therefore, based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), claimant's motion to file a late claim is denied.
February 13, 2015
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims