Opinion
# 2021-032-037 Claim No. 128591 Motion No. M-96628
04-14-2021
TIFFANY SHABAT v. STATE OF NEW YORK AND CITY UNIVERSITY OF NEW YORK
By: Michael N. David, Esq. Hon. Letitia James, Attorney General By: Suzette Corinne Merritt, AAG Indira Mahabir, AAG
Synopsis
Case information
| UID: | 2021-032-037 |
| Claimant(s): | TIFFANY SHABAT |
| Claimant short name: | SHABAT |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK AND CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128591 |
| Motion number(s): | M-96628 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | By: Michael N. David, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Suzette Corinne Merritt, AAG Indira Mahabir, AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 14, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim was filed on September 26, 2016, seeking damages for injuries sustained when claimant collided with a glass door on the campus of Brooklyn College. Thereafter, defendant moved to dismiss the claim on the ground that the claim failed to comply with Court of Claims Act § 11 (b) and was therefore jurisdictionally defective. In support of its motion, the State submitted two affidavits, one from an employee of the Office of the Attorney General and one from an employee of the City University of New York, averring that the notice of intention to file a claim received by each office did not contain photographs identifying the location of claimant's accident. Counsel for claimant then submitted an affirmation in which he averred that he had attached the photographs to the notices of intention prior to serving them. By Decision and Order dated June 25, 2018, the Court granted defendant's motion and dismissed the claim, finding that the Court lacked jurisdiction over the claim for its failure to comply with Court of Claims Act § 11 (b). Claimant appealed, and the Second Department reversed this Court's Decision and Order (Shabat v State of New York, 177 AD3d 1009 [2d Dept. 2019]). In doing so, the Second Department stated that "the affidavits submitted by the defendants in reply created a triable issue of fact as to whether the claimant had included, with the notice of intention, photographs, which would have directed the defendants to the precise set of doors at issue" (id. at 1010-1011). Therefore, this Court ordered a hearing, limited solely to the issue of determining whether claimant's service of a notice of intention upon the Office of the Attorney General and CUNY contained pictures depicting the site of the accident.
CPLR 603 allows the severance of a "separate issue" to be conducted "[i]n furtherance of convenience[.]" Severance of a separate issue from the claim is a "discretionary determination" that is "[t]ypically . . . used to address such non-merits defenses as . . . lack of jurisdiction" (Baseball Off. of Com'r v. Marsh & McLennan, Inc., 295 AD2d 73, 78-79 [1st Dept. 2002] [citations omitted]).
Claimant seeks to admit into evidence two photographs of text messages exchanged between Mr. David, who is claimant's attorney, and claimant (Claimant's Exhibits 2 & 3). The photographs show that claimant sent pictures of the glass door where the accident occurred to Mr. David. Defendant seeks to preclude these exhibits on three grounds: (1) the pictures are irrelevant; (2) the pictures constitute inadmissible hearsay; and (3) in the event that the pictures are admitted, their admission constitutes a waiver of attorney-client privilege, and defendant is entitled to all communications between claimant and her counsel.
Court of Claims Act § 11 (b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed" (Lepkowski v State of New York, 1 NY3d at 206 [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept. 2016] [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept. 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept. 2008]). However, defendants are not required "to ferret out or assemble information that section 11 (b) obligates the [movant] to allege" (Lepkowski v State of New York, 1 NY3d at 208). The condition at issue here is the requirement that the claim specify the place where the claim arose.
The Court will first address defendant's argument as to the relevancy of the exhibits. " 'Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence' " (Gansburg v Behrman, 167 AD3d 882, 883 [2d Dept. 2018], quoting Dambakly v Patire, 301 AD2d 600, 602 [2d Dept. 2003] [additional citation omitted]).
Here, the Court finds that the photographs of text messages between himself and his client are not relevant to the instant hearing. The sole issue to be decided is whether claimant attached photographs of the accident site to the notices of intention, not whether claimant's counsel had the photographs in his possession prior to serving the notices of intention. To that end, the Court must decide whether to credit defendant's argument that the notices of intention served on the Office of the Attorney General and CUNY did not include photographs depicting the location of the accident, or to credit claimant's argument that the photographs were in fact attached to the notices of intention. The Court anticipates that counsel for claimant will testify that he possessed pictures depicting the accident site prior to serving the notices of intention and that he attached said pictures to the notices of intention, as counsel averred to these facts within his affirmation in opposition to defendant's summary judgment motion. Indeed, claimant's counsel provided the pictures to defendant during discovery, thus it is not in dispute that Mr. David possessed the pictures. Mr. David could simply seek to admit into evidence the pictures themselves, and avoid divulging text message communications between himself and his client.
Based upon the foregoing, the Court need not reach defendant's remaining grounds for precluding Exhibits 2 and 3.
It is hereby ORDERED that Exhibits 2 and 3 are precluded from being entered into evidence at trial on April 16, 2021.
April 14, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion in Limine, dated April 6, 2021; and Affirmation in Support of Motion in Limine, affirmed by Indira Mahabir, AAG and Suzette Corinne Merritt, AAG on April 6, 2021, with Exhibit A annexed thereto. 2. Affirmation in Opposition, affirmed by Michael N. David, Esq. on April 11, 2021. 3. Reply Affirmation, affirmed by Indira Mahabir, AAG and Suzette Corinne Merritt, AAG on April 13, 2021.