Opinion
# 2015-049-025 Claim No. None Motion No. M-86031
03-31-2015
HARVEY WILLIAMS v. THE STATE OF NEW YORK
Parker Waichman, LLP By: Andrew B. Federman, Esq. Eric T. Schneiderman, New York State Attorney General By: John M. Hunter, Assistant Attorney General
Synopsis
Claimant's application pursuant to Court of Claims Act § 10(6) granted.
Case information
| UID: | 2015-049-025 |
| Claimant(s): | HARVEY WILLIAMS |
| Claimant short name: | WILLIAMS |
| 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-86031 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Parker Waichman, LLP By: Andrew B. Federman, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: John M. Hunter, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 31, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Harvey Williams seeks an order pursuant to Court of Claims Act § 10(8)(a) deeming a notice of intention he served on defendant to be a claim or, in the alternative, for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6). Claimant's application is supported by his own affidavit, a proposed claim and a number of filings from a parallel case he has filed against the City of New York.
The facts underlying the section 10(8) motion are as follows: On December 6, 2012, claimant served a notice of intention on the State (see Aff. in Opp. ¶ 2). That notice contained the following passage:
"The claim involved herein took place on September 12, 2012, at approximately 5:15 p.m., on the pedestrian walkway overpass located over the I 278 segment of the West Bruckner Expressway at Bruckner Blvd. and Beach Avenue Bronx, New York, and more specifically, the entrance ramp to the pedestrian walkway located on the northeast corner of Bruckner Blvd., and Beach Avenue, Bronx, New York . . . [C]laimant, HARVEY WILLIAMS while operating a bicycle upon said pedestrian walkway, was caused to fall from said bicycle and be violently precipitated to the ground as a result of the obstructed, cracked, uneven, raised, depressed, missing and/or deteriorated pedestrian walkway resulting in severe, personal and permanent injuries to said claimant" (Aff. in Supp. Ex. B ¶ 2 [emphasis omitted]).
There appears to be a defect in this notice, which would render its treatment as a claim problematic. Specifically, as defendant notes (see Aff. in Opp. ¶ 9), the notice of intention states that claimant suffered a fractured right knee, while the proposed claim attached to the late claim application lists a fractured right ankle. Both the 50-H hearing transcript from Williams' case against the City (see Mot. Ex. D), as well as the affidavit in support of the late claim motion, make clear that the proposed late claim more accurately describes his claim regarding the injury he suffered. Thus, if the claimant's section 10(8) application were to be granted, it would produce a pleading that does not correctly describe the injury alleged. Given that claimant seeks the same essential result in his section 10(6) motion, which would not invite such complications, I proceed to consider that application first.
To determine whether claimant may file a late claim, I must consider the factors set forth in Court of Claims Act § 10(6) (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). While claimant's initial belief that the City of New York was the responsible party is not a valid excuse for purposes of section 10(6) (see Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]), the other factors weigh in the claimant's favor, including the most important factor: the appearance of merit.
To establish a cause of action that appears meritorious, claimant has the burden of showing that (1) the proposed claim "must not be patently groundless, frivolous, or legally defective," and (2) the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In applying this standard, "the court looks at all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of 'apparent merit'" (Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A] [Ct Cl, 2006], at 2).
Defendant argues that the proposed claim is vague as to the location of the accident, and thus is inadequate to meet the requirements of Court of Claims Act § 11(b). I cannot agree. The claim identifies the precise ramp where the accident took place, as well as the nature of the alleged defects in the roadway. Moreover, appended to the notice are a number of photographs of the area from which the area of the fall is further made clear. This amply satisfies section 11(b), which does not require "absolute exactness," but "simply a statement made with sufficient definiteness to enable [defendant] to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Deep v State of New York, 56 AD3d 1260, 1260 [4th Dept 2008][citations omitted]).
Also without merit is defendant's contention that the absence of a police accident report and medical report is fatal to the application. There is "no hard and fast requirement [that a] particular kind of proof is mandated" on a late claim motion (Ledan v State of New York, UID No. 2009-030-554 [Ct Cl, Scuccimarra, J., Sept. 17, 2009]; see also Yarusso v State of New York, UID No. 2012-049-067 [Ct Cl, Weinstein, J., Dec. 21, 2012] [medical records to substantiate injury not required for late claim application]). Similarly, an expert affidavit as to the design of the walkway is not required in a personal injury action (see Matter of Morales v State of New York, 292 AD2d 455, 456 [2d Dept 2002]).
Further, defendant's contention that the application is only supported by the statements of counsel, who is without knowledge of the underlying facts, is incorrect, as claimant's affidavit is before me as well (see Mot. Ex. F). In it, Williams states that he was bicycling on the overpass when he hit a pothole, lost control of his bicycle, and was thrown off, causing him to sustain injuries including a distal fracture to his right ankle. Moreover, as noted, claimant has provided the transcript of the 50-h hearing, which contains Williams' sworn testimony regarding the accident.
In light of the above, the proposed claim and supporting statement are adequate to meet the "appearance of merit" standard.
Defendant does not oppose the application with respect to the factors of notice, opportunity, and prejudice, which are therefore deemed to weigh in claimant's favor (see Mamedova v City Univ. of N.Y., 13 Misc 3d at 2 [defendant's failure to address certain section 10(6) factors "entitles the court to presume that they weigh in favor of granting the motion"]; Fine v State of New York, 10 Misc 3d 1075[A] at 4 [Ct Cl 2005] [late claim factors not opposed by the defendant are "presumed to weigh in Claimant's favor"]).
Finally, defendant does not suggest that claimant has an alternative remedy.
Accordingly, it is hereby
ORDERED that claimant's motion no. M-86031 is granted to the extent it seeks late claim relief pursuant to section 10(6) of the Court of Claims Act, and that within 30 days of the filing of this Decision and Order, claimant shall serve and file a properly verified claim in the form of the proposed claim annexed as exhibit H to his moving papers, entitling it Claim, and naming the State of New York as the only proper defendant (see NY Const. art. VI, § 9). In serving and filing the claim, claimant shall comply with all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a.
That portion of claimant's motion to treat his notice of intention as a claim under Court of Claims Act § 10(8) is denied as moot.
March 31, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, Affirmation in Support and annexed Exhibits.
2. Defendant's Affirmation in Opposition.
3. Claimant's Affirmation in Reply and annexed Exhibits.