Opinion
# 2017-045-001 Claim No. None Motion No. M-87685
01-09-2017
MERRY WYNKOOP v. THE STATE OF NEW YORK
Finz & Finz, P.C. By: Todd M. Rubin and Ameer Benno, Esqs. Hon. Eric T. Schneiderman, Attorney General By: Daniel S. Hallak, Assistant Attorney General
Synopsis
Motion to file a late claim, trip and fall on a pathway.
Case information
| UID: | 2017-045-001 |
| Claimant(s): | MERRY WYNKOOP |
| Claimant short name: | WYNKOOP |
| 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-87685 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Finz & Finz, P.C. By: Todd M. Rubin and Ameer Benno, Esqs. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Daniel S. Hallak, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 9, 2017 |
| 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, Claimant's Attorney's Affirmation with Annexed Exhibits A-I; Defendant's Affirmation in Opposition with annexed Exhibits A-C; Claimant's Reply Affirmation with annexed Exhibits J-L.
Claimant, Merry Wynkoop, has brought this motion pursuant to Court of Claims Act (CCA) § 10 (6) seeking an order granting permission to file a late claim. Defendant, the State of New York opposes the motion.
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 [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, Inc. 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 alleges that on June 3, 2014 at approximately 11:30 a.m. she tripped and fell on a portion of the Bethpage bikeway that is located on the westbound side of Sunrise Highway at Lakeshore Boulevard, approximately 231 feet from the Sunrise Highway entrance to the Peter J. Schmitt Massapequa Preserve. Claimant was a pedestrian walking on the Bethpage bikeway at the time of her fall which was caused by a defective condition in the bikeway. Claimant has submitted photographs depicting the alleged defective condition of the bikeway at the time of her fall. Claimant originally believed that the pathway leading to the preserve was owned and maintained by Nassau County. As a result claimant served a notice of claim upon Nassau County on July 11, 2014 and on the Town of Oyster Bay on July 18, 2014. Claimant testified at her 50-H hearing that the incident occurred on the path going into the Massapequa Preserve. Claimant commenced an action in Nassau County Supreme Court against Nassau County and the Town of Oyster Bay on February 2, 2015. Susan Santorufo, a Nassau County groundskeeper supervisor, was deposed in that action. She is responsible for overseeing the maintenance and cleaning of the parks and areas of the southeast region of Nassau County including the Massapequa Preserve. She stated that she does not inspect the pathway that leads into the park from Sunrise Highway because it is not part of the Preserve. She believed that the pathway was part of Sunrise Highway. She continued to explain that the pathway is a side path off of Sunrise Highway which passes by the Preserve and ends at either the train trestle or some unidentified building. Mrs. Santorufo indicated that she did not know who was responsible for maintaining the pathway.
Claimant states that she is bringing the instant motion based upon her belief that the portion of the pathway where claimant's accident occurred was the Bethpage bikeway, which she believes is owned and maintained by the State of New York.
Claimant does not offer any legally acceptable excuse for the delay in filing the claim. It is well settled that a claimant's mistaken belief that a pathway upon which an accident occurred may have been a County or Town pathway rather than a State pathway does not constitute a reasonable excuse for the delay in filing a claim against the State (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]). 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. Here the claim accrued on June 3, 2014 but was not served on defendant until November 9, 2015. There is no indication that defendant was made aware of claimant's accident prior to November 9, 2015. Claimant argues that the condition of the pathway was inspected by her investigator, Paul Castel, on June 24, 2014 as well as October 23, 2015. Mr. Castel stated that the condition of the pathway had not changed between those dates. He took measurements and photographs of the pathway on both occasions. Defendant argues that, at the very least, the 524 day delay in this matter does prejudice its ability to timely investigate the claim as witness memories and recollections may be compromised by the passage of time.
Thus, the Court finds that, given the entirety of the circumstances involved in the present action, defendant was not given timely notice of the claim, defendant was prejudiced by the delay and defendant's opportunity to investigate the claim has been compromised.
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]).
In support of her position claimant speculates that the pathway where claimant fell may be part of a bicycle path which she alleges is owned by the State of New York. Ms. Santorufo was unable to identify the entity responsible for maintaining the pathway. She does however describe the pathway in question as a "side path off Sunrise Highway" which leads to the train trestle and ends slightly past an unidentified building. She does not refer to the path as being part of the Bethpage bicycle path or any bicycle path. Claimant herself refers to the incident occurring on the path going into the Massapequa Preserve. The Preserve is owned and operated by Nassau County.
Claimant also argues that she should be able to pursue her claim against the State since her Supreme Court action against the Town of Oyster Bay was dismissed. The letter from the Town attorney accompanying the present motion directs claimant to confirm that the walkway is not within the jurisdiction of the Town of Oyster Bay. The affidavit of Kenneth Bishop attached to the present motion is troubling since it refers at one point to the location of the pathway as being "within" the Preserve. Additionally, his conclusion refers to a lead paint condition which is not related to this action. However, Supreme Court Justice Thomas Feinman's order dismissing the case against the Town reveals that the order was granted on an unopposed motion.
Additionally, claimant argues that somehow the pathway is owned and maintained by the State of New York due to the path's proximity to Sunrise Highway, a state owned roadway. 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]). Clearly, the mere fact that a pathway is near a state owned roadway does not ascribe, without more, any legal relationship over the pathway to defendant.
Lastly, defendant submitted affidavits from Michael Librizzi, a New York State Department of Transportation Regional Real Estate Officer and Michelle Somma, the Administrative Assistant to the Deputy Regional Director of the New York State Office of Parks, Recreation and Historic Preservation. They state that the area where claimant's accident occurred is not within the maintenance or control of defendant. Moreover, Mr. Librizzi establishes, in his supplemental affidavit, that the accident took place within an area owned, maintained and controlled by the Town of Oyster Bay.
Accordingly, the Court finds that claimant has failed to establish that the claim is meritorious.
Finally, it appears as though claimant may have viable actions against other entities in New York State Supreme Court.
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.
January 9, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims