Opinion
# 2014-028-508 Claim No. 123637 Motion No. M-84370
04-14-2014
CHRISTIAN TORRES v. THE STATE OF NEW YORK
LAW OFFICES OF PETER P. TRAUB BY: PETER P. TRAUB, ESQ. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Robert E. Morelli, Esq. Assistant Attorney General
Synopsis
SUMMARY: Motion for permission to file a late claim is granted. The fact that Movant failed to appreciate the extent of his injuries does not, in the circumstances here, present a reasonable excuse for delay. The fact that a supervisor with authority to initiate investigation of the incident was on the scene and did begin an investigation establishes that the State had adequate notice.
Case information
| UID: | 2014-028-508 |
| Claimant(s): | CHRISTIAN TORRES |
| Claimant short name: | TORRES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123637 |
| Motion number(s): | M-84370 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | LAW OFFICES OF PETER P. TRAUB BY: PETER P. TRAUB, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Robert E. Morelli, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 14, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on Movant's motion for permission to file an untimely claim pursuant to Court of Claims Act §10 (6):
1. Notice of Motion and Supporting Affirmation of Peter P. Traub, Esq., with annexed Exhibits including Affidavit of Christian Torres;
2. Affirmation in Opposition of Robert Morelli, AAG, with annexed Exhibits, including affidavit of Timothy Byrne;
3. Reply Affirmation of Peter P. Traub, Esq.; and
4. Further Reply Affirmation of Peter P. Traub, Esq., with annexed Exhibit.
Filed papers: None
Movant's proposed claim (Traub affirmation, Exhibit 1) alleges that on July 21, 2013, at approximately 3:30 p.m., Movant tripped and fell as he was playing a game of touch football on the beach at Field No. 4 in Robert Moses State Park. The fall was caused, it is alleged, by a "metallic whole section of snow fence" that was buried in the sand of that beach. Defendant's liability is premised on its failure to realize either that the snow fence was at that location or that a section of snow fencing was missing, and other acts or omissions that violated its duty to keep the area in a reasonably safe condition.
In falling, Movant impaled his right knee on a twisted metal wire extending out from the snow fence section. Park Officers arrived to render first aid, and then the Park Manager, Tim Byrne, came to the scene. He called the police, rinsed Movant's knee with fresh water, got him a wheelchair, made arrangements for Movant to be moved, and took photographs of the scene (Torres affidavit, ¶ 3). In addition, Byrne dug the snow fence out of the sand, removed it from the scene and threw it in the trash. Movant was taken by ambulance to Samaritan Hospital where the knee was given a more thorough cleaning and he was given a tetanus shot. Movant was told that the wound did not have to be sutured. He was referred to another hospital for x-rays, which revealed nothing unusual. An MRI was discussed at that time, but Movant was informed that that procedure would have to be prescribed by an orthopedic doctor.
Movant lacked any medical insurance and therefore was unable to afford an orthopedic examination. He applied for Medicaid and was approved on August 30, 2013, but the earliest appointment he could get was in February 2014. Movant then applied for health coverage from Emblem Health Care. That application was approved in mid-October, and on November 6, 2013 he was examined by a knee and joint specialist, who referred him for an MRI. On November 21, he was informed that the MRI revealed metal shrapnel in his leg and "derangement" of the patella. It was at that point that Movant sought legal counsel, and the instant motion was commenced shortly thereafter. Movant explains, "I had no intention of seeking legal redress for a simple puncture wound; however, upon learning of the more serious nature of my injury, the importance of this action became apparent" (Torres affidavit, ¶ 14). At the present time, Movant is receiving physical therapy while surgical options are being considered.
Late claim relief is available only if the motion is brought within the applicable CPLR Article 2 statute of limitations. A negligence action, asserted against a private citizen or organization, would have to be commenced within three years (CPLR 214), and this motion, brought approximately five months after the accident, is timely.
In order to determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in the Court of Claims Act § 10 (6), as well as any other relevant factors. The existence or absence of any one of these factors is not determinative, and the list of factors is not exhaustive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys., Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The six statutory factors are as follows:
(1) whether the delay in filing the claim was excusable;In the instant application, counsel for Movant asserts that his delay in commencing an action in the Court of Claims was excusable because he initially believed his condition was not serious and because it took him several months to obtain information about the serious consequences of his fall. Movant's counsel argues that even if this is not accepted as a reasonable excuse for delay, the meritoriousness of the claim and the lack of any prejudice to Defendant would warrant granting the requested relief.
(2) whether the State had notice of the essential facts constituting the claim;
(3) whether the State had an opportunity to investigate the circumstances underlying the claim;
(4) whether the claim appears to be meritorious;
(5) whether the failure to file or serve upon the attorney general a timely claim or to serve a notice of intention resulted in substantial prejudice; and
(6) whether the claimant has any other remedy.
Research discloses that delayed Workers' Compensation claims have been allowed where the injured party was not aware of the extent of his injuries until after the time for making a timely claim had passed (Matter of Maiello v Electra Supply Co., 43 AD2d 779 [3d Dept 1973] [injury initially thought to be a muscle pull]; see also Claim of McEnaney, 80 AD2d 689 [3d Dept 1981] ["claimant gave notice as soon as she had knowledge of the nature and extent of the injury therefore timely notice was given"]). In late claim applications decided under the General Municipal Law, the applicant's lack of knowledge of the extent or seriousness of his injuries may constitute an acceptable excuse for delay, but only if there is a reasonable explanation as to why it took so long for the injury to become apparent or be diagnosed (Matter of Eaddy v County of Nassau, 282 AD2d 675 [2d Dept 2001]; Lefkowitz v City of New York, 272 AD2d 56 [1st Dept 2000]). A similar rule has been applied in the Court of Claims (Padilla v the State University of New York and the State of New York, UID No. 2003-010-031 [Ct Cl Sept. 29, 2003], Ruderman, J. [there must be an explanation of why the injury took so long to become apparent and be diagnosed]).
Delay in consulting an attorney, even if there is uncertainty about the extent of injury, is also to be given consideration (id. ["the medical records (do not) provide an explanation for claimant's failure to timely seek the advice of an attorney]; see also Gaudio v City of New York, 235 AD2d 228 [1st Dept 1997]). Furthermore, as Judge Midey of this Court has noted, in the Court of Claims injured parties do not have to actually commence a lawsuit upon mere suspicion that the injuries are serious. They may instead serve a notice of intention to file a claim which provides additional time for the litigants to, among other things, determine the severity of their injuries (Swan v the State of New York, UID No. 2004-009-57 [Ct Cl Nov. 17, 2004], Midey, J.).
In the situation presented here, it is understandable that Movant did not immediately suspect that his injuries would be sufficiently serious to warrant a lawsuit. At some point, however, he became aware that there was at least a question about the nature of his injury. This is demonstrated by his efforts to, first, obtain Medicaid coverage and then, when he could not get an early appointment, to obtain a different health care insurance policy. At least by August 30, 2013, when he was approved for Medicaid, he had concerns that his physical condition was more serious than originally thought, and there would still have been time for him to serve a timely notice of intention, even if he wasn't fully committed to prosecuting a claim at that point. This factor, therefore, weighs against his receiving the requested relief.
It does not appear that any party other than the State would have responsibility for a buried snow fence under a State beach property, and therefore Movant does not have any alternative remedy. Defense counsel's suggestion that Movant may have a claim for medical malpractice against one or more physicians (Morelli affirmation, ¶ 23) relates to matters separate and apart from potential liability for causing the initial injury.
The factors of notice, opportunity to investigate and potential prejudice to the Defendant are interrelated. And the final factor, the appearance of merit, is the one that weighs most heavily, because it would be pointless to permit the filing of a claim that did not appear to be meritorious (see e.g. Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]. All of these factors favor Movant's application.
Defendant's argument that the proposed claim fails to satisfy the pleading requirements of section 11(b) of the Court of Claims Act is without merit. It is true that the description of the location contained in that document - "Field #4, at Robert Moses State Park, Islip, New York (location code 5254)" - may lack precision, depending on what the code number references. However, attached to the claim were photographs of the accident scene, showing both Movant and his injuries and the piece of snow fence with wires extruding, that were taken by Park Manager Byrne. In light of his direct involvement, this Court is at a loss how Byrne could state that the claim's description "could encompass any location within the approximately 400,000 square feet of beach at the site" (Byrne affidavit, ¶ 8). The test is whether the State has "a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013], [citation omitted]). That test is satisfied by the proposed claim.
The State had almost immediate notice of the circumstances giving rise to the proposed claim. The incident was unusual and was quickly brought to the attention of a person with "supervisory authority to initiate an investigation into the claim," which is generally accepted as meeting the notice requirement (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]; Powell v State of New York, 187 AD2d 848 [3d Dept 1992]). It has been noted, in fact, that such notice puts the Defendant "in a better position to explore the circumstances surrounding the incident than if the claim had been timely filed on the 90th day" Crawford v. City Univ. of New York, 131 Misc. 2d 1013, 1015 [Ct. Cl. 1986]). The incident was also the subject of an police investigation (Traub affirmation, Exhibit 2 [report]; Traub further reply affirmation, Exhibit 1 [written notes]) which was carried out by officers who had been summoned to the scene by the Park Superintendent. Finally, the incident involved a condition - snow fencing being buried under sand on a public beach - that in normal circumstances is unlikely to occur in the absence of negligence and would therefore be of concern to the State whether or not a lawsuit had been commenced yet.
Because this area was heavily impacted by Hurricane (also called Superstorm) Sandy in October 2012, it can be argued, and Defendant is expected to argue, that circumstances at this location were not "normal." Whether there was negligence in this situation is a matter to be determined after trial, however.
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With respect to prejudice, the instant motion was commenced approximately five months after the date of the accident and thus two months after a timely claim could have been filed. While it is true that the piece of snow fencing had been removed and possibly other changes to the location made in the interim, "the traditional 90-day filing period allowed for negligence claims . . . is itself of such duration as to allow dissipation of tire marks and other putatively transitory factors" (Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Defendant is not entitled to more notice than that which is contemplated by the statute, and given the nature of the incident, the immediate notice to the State, and the unusual nature of the alleged defect, the additional two-month delay in informing the State that it was being sued cannot be said to cause Defendant significant prejudice.
Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting the requested relief. Movant therefore is directed file and serve a claim identical to the proposed claim, and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed. Movant's motion is granted.
April 14, 2014
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims