Court of Claims – Page 10 – New York Appellate Digest

Court of Claims, Negligence, Trusts and Estates

FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT).

The Second Department determined claimant’s wrongful death action was properly dismissed because claimant failed to comply with the notice requirements of the Court of Claims Act and commenced the claim before the appointment of an administrator of her son’s estate:

” [B]ecause suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed'”… . Court of Claims Act § 10(3) provides that a claim to recover damages for personal injuries caused by the negligence of a state employee must be filed within 90 days after the accrual of such claim, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim must be filed within two years after the accrual of the claim … . Court of Claims Act § 10(2) provides that a wrongful death claim must be filed within 90 days after the appointment of an executor or administrator of a decedent, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim must be filed within two years after the death of the decedent … .

Here, neither the claim nor the notice of intention to file a claim was filed within 90 days after the accrual of the personal injury claim, and thus, the personal injury claim was not timely. Moreover, since the claim was commenced prior to the claimant’s appointment as administrator of her son’s estate, she failed to comply with the requirements for commencing a wrongful death claim … . The failures to strictly comply with Court of Claims Act § 10(2) and (3) were jurisdictional defects compelling dismissal of the claim … . Kiesow v State of New York, 2018 NY Slip Op 03670, Second Dept 5-23-18

COURT OF CLAIMS (FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/NOTICE OF INTENT (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/WRONGFUL DEATH COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/NEGLIGENCE (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/TRUSTS AND ESTATES (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))

May 23, 2018

Court of Claims, Negligence

MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS HIGHWAY ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, LAW OFFICE FAILURE NOT AN ADEQUATE EXCUSE (SECOND DEPT).

The Second Department determined the Court of Claims should not have granted claimant’s motion for leave to file a late notice of claim in this highway accident case. Plaintiff’s motorcycle skidded off the road and truck a guardrail. The accident report stated that plaintiff lost control of the motorcycle “for an unknown reason.” The notice of claim should have filed within 90 days, but, due to law office failure, the attempt to file was made two and a half years late. Law office failure is not an adequate excuse. The accident report did not alert the state to the essential facts of the claim, and claimant did not show the state was not prejudiced by the delay:

Court of Claims Act § 10(3) requires that a claim to recover damages for personal injuries caused by the negligence of an officer or employee of the state must be served upon the attorney general within 90 days after the accrual of such claim. However, “Court of Claims Act § 10(6) permits a court, in its discretion, upon consideration of the enumerated factors, to allow a claimant to file a late claim” … . The enumerated factors are whether the delay in filing was excusable, the State had notice of the essential facts constituting the claim, the State had an opportunity to investigate the circumstances underlying the claim, the claim appears to be meritorious, the State is prejudiced, and the claimant has any other available remedy … . “No one factor is deemed controlling, nor is the presence or absence of any one factor determinative” … . Casey v State of New York, 2018 NY Slip Op 03120, Second Dept 5-2-18

COURT OF CLAIMS (TRAFFIC ACCIDENTS, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS HIGHWAY ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, TRAFFIC ACCIDENTS, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS HIGHWAY ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (COURT OF CLAIMS, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS HIGHWAY ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (COURT OF CLAIMS, NOTICE OF CLAIM, LAW OFFICE FAILURE IS NOT AN ADEQUATE EXCUSE FOR FAILURE TO TIMELY FILE NOTICE OF CLAIM (SECOND DEPT))/LAW OFFICE FAILURE (COURT OF CLAIMS, NOTICE OF CLAIM, LAW OFFICE FAILURE IS NOT AN ADEQUATE EXCUSE FOR FAILURE TO TIMELY FILE NOTICE OF CLAIM (SECOND DEPT))

May 2, 2018

Court of Claims

NOTICE OF INTENTION INSUFFICIENTLY SPECIFIC ABOUT THE TIME AND PLACE OF THE ALLEGED SEXUAL HARASSMENT AND EMPLOYMENT DISCRIMINATION, CLAIMS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined sexual harassment and employment discrimination claims against a former NYS Assemblyman were properly dismissed because the notice of intent were insufficiently specific:

… [T]he statute requires that a “claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained[,] . . . [and a] notice of intention to file a claim shall set forth the same matters” (Court of Claims Act§ 11 [b]). “With regard to the requisite specificity as to the place where the claim arose, we note that [w]hat is required is not 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” … . Here, the relevant notice of intention did not set forth … the place where any of the alleged misconduct occurred … . We reject claimants’ contention that the claims … should not have been dismissed because the alleged misconduct occurred wherever they were working at any particular time and defendant could easily ascertain such information from its records. “The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege” … . Snickles v State of New York, 2018 NY Slip Op 02042, Fourth Dept 3-23-18

COURT OF CLAIMS (NOTICE OF INTENTION INSUFFICIENTLY SPECIFIC ABOUT THE TIME AND PLACE OF THE ALLEGED SEXUAL HARASSMENT AND EMPLOYMENT DISCRIMINATION, CLAIMS PROPERLY DISMISSED (FOURTH DEPT))/NOTICES OF INTENTION (COURT OF CLAIMS, NOTICE OF INTENTION INSUFFICIENTLY SPECIFIC ABOUT THE TIME AND PLACE OF THE ALLEGED SEXUAL HARASSMENT AND EMPLOYMENT DISCRIMINATION, CLAIMS PROPERLY DISMISSED (FOURTH DEPT))

March 23, 2018

Animal Law, Court of Claims, Immunity

PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined the duty to keep a state park safe is a proprietary function, not a governmental function. The governmental immunity doctrine does not apply. Therefore the claimant’s motion for summary judgment based upon his being bitten by a rabid fox in a park was properly granted:

“The relevant inquiry in determining whether a governmental agency is acting within a governmental or proprietary capacity is to examine . . . the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred’ ” … .

Here, claimant’s injuries allegedly resulted from defendant’s negligent failure to take adequate steps to protect park patrons from reasonably foreseeable danger, despite having actual notice of a potentially rabid animal on the park premises hours before the incident. “It is well settled that regardless of whether or not it is a source of income the operation of a public park by a municipality is a quasi-private or corporate and not a governmental function”… . Further, “a municipality is under a duty to maintain its park . . . facilities in a reasonably safe condition” … . That “duty goes beyond the mere maintenance of the physical condition of the park . . . and, although strict or immediate supervision need not be provided, the municipality may be obliged to furnish an adequate degree of general supervision which may require the regulation or prevention of such activities [or other conditions] as endanger others utilizing the park” … . Thus, we conclude that the court properly determined that claimants’ allegations that defendant failed “to minimize the risk posed with a relevant warning and effective notification to the [p]ark [p]olice” implicated defendant’s proprietary, not governmental, duties. Agness v State of New York, 2018 NY Slip Op 01747, Fourth Dept 3-16-18

COURT OF CLAIMS (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/IMMUNITY (PARK SAFETY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/ANIMAL LAW (PARK SAFETY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/PROPRIETARY FUNCTION (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/PARKS (COURT OF CLAIMS, PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/RABID ANIMALS (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))

March 16, 2018

Court of Claims, Negligence

TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT).

The Fourth Department, modifying (reversing) the Court of Claims, determined the “dangerous condition” cause of action brought on behalf of plaintiff’s decedent should not have been dismissed. The driver passed two signs indicating the bridge ahead was closed, drove through a sign that was in the middle of the road flanked by barricades, and then struck a beam at the entrance to the bridge which spanned the width of the bridge. The driver was killed instantly but the car continued and struck another similar beam spanning the other end of the bridge, injuring plaintiff’s decedent (who died the next day). The plaintiff alleged, under a “second impact” theory, the beams, which were welded at a height which allowed a vehicle to pass under under them, constituted a dangerous condition which was the proximate cause of death. The Fourth Department held the beams constituted a dangerous condition as a matter of law:

… [T]he court erred in dismissing the claim insofar as it alleges that defendants created a dangerous condition that constituted a proximate cause of decedent’s injuries. We therefore modify the judgment accordingly. Although defendant State of New York is not an insurer of its roads and highways … , it “has an obligation to provide and maintain adequate and proper barriers along its highways” … . Here, we conclude that defendants’ decision to weld a steel box beam across the front of the Bridge, at a height that allowed a motor vehicle to proceed under the beam, constituted the creation of a dangerous condition as a matter of law … .

… [C]aimant proceeded under a “second-impact theory whereby she contended, not that [defendants] caused the accident, but that [their] negligence . . . was [a] proximate cause of . . . decedent’s injury”… . The fact that no negligent act of defendants caused the vehicle to collide with the steel box beam is irrelevant. The point to be addressed is whether the steel box beam was a substantial factor in aggravating decedent’s injuries and causing his death … . Reames v State of New York, 2018 NY Slip Op 00713, Fourth Dept 2-2-18

NEGLIGENCE (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/COURT OF CLAIMS (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/TRAFFIC ACCIDENTS (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/SECOND IMPACT THEORY (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/HIGHWAYS AND ROADS (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))

February 2, 2018

Civil Procedure, Court of Claims

BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT).

The Third Department, modifying Supreme Court, determined an state prison inmate's action in Supreme Court against doctors (Lieb and Angell) alleging medical malpractice should not have been dismissed as duplicating an action against the same doctors in the Court of Claims. It was possible the state would not indemnify the doctors who were not employees of the state and plaintiff would be left without recourse. The Supreme Court action should have been stayed, not dismissed:

The legal theory in the Court of Claims action is nearly identical to the Supreme Court action, and it is not disputed that the two actions arise out of the same set of facts. Moreover, Correction Law § 24-a provides that licensed physicians providing contractual medical care at the request of DOCCS are covered by the defense and indemnity provisions in Public Officers Law § 17, as long as the injury was not the result of intentional wrongdoing. As such, it appears that the dismissal of the Supreme Court action would not prejudice plaintiff's right to receive full recovery from all defendants, as intentional wrongdoing is not part of the Supreme Court action and any damages attendant to Lieb's or Angell's malpractice or negligence would be borne by the state in the Court of Claims action.

However, while these defense and indemnity provisions appear to apply to Lieb and Angell, the record is not fully developed at this time to make such a definite determination. Indeed, despite currently defending Angell, the state has neither conceded nor admitted in any of its submissions or pleadings that it is statutorily bound by Correction Law § 24-a and Public Officers Law § 17 (3) (a) to indemnify Lieb and Angell. Rothschild v Braselmann, 2018 NY Slip Op 00054, Third Dept 1-4-18

CIVIL PROCEDURE (BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT))/COURT OF CLAIMS (BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT))

January 4, 2018

Court of Claims, Negligence

STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT).

The Second Department determined the state’s motion for summary judgment in this personal injury action was properly granted. Claimant alleged he suffered a head injury when diving into waves at a state park beach. Apparently claimant’s head hit the ocean floor:

Governmental entities owe a duty to ” act as a reasonable [person] in maintaining [their] property in a reasonably safe condition'” … . “The duty goes beyond the mere maintenance of the physical condition of the park” … , as there is also a “recognized duty of general supervision” … . The degree of general supervision must be “adequate” … .

Here, in support of its cross motion for summary judgment dismissing the claim, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure … . Furthermore, the defendant had no duty to warn swimmers of threats arising from the existence of natural, transitory conditions of the ocean floor … . Courtney v State of New York, 2017 NY Slip Op 06250, Second Dept 8-23-17

NEGLIGENCE (SWIMMERS, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/COURT OF CLAIMS (STATE BEACHES, SWIMMERS, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/SWIMMERS (STATE BEACHES, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/STATE PARKS (STATE BEACHES, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))

August 23, 2017

Court of Claims, Trusts and Estates

NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT.

The Second Department, reversing the Court of Claims, determined a notice of intention to file a claim for medical malpractice was valid. A notice of intention to file a claim, unlike a notice of claim, may be filed by any “interested person,” here the wife of decedent (who was not representing the decedent’s estate at the time):

The claimant’s husband (hereinafter the decedent) was treated at Stony Brook University Hospital (hereinafter Stony Brook) from February 13, 2005, through March 3, 2005. The decedent was later treated at Mount Sinai Hospital from March 18, 2006, until his death on October 30, 2006. On April 19, 2006, the claimant, “as Proposed Guardian for” the decedent, filed a notice of intention to file a claim against the defendant State of New York to recover damages for medical malpractice that allegedly occurred while the decedent was treated at Stony Brook (hereinafter the notice of intention). On January 3, 2008, the claimant was granted letters of administration for the decedent’s estate. On January 11, 2008, the claimant filed a claim against the defendant to recover damages for medical malpractice, wrongful death, and loss of services.

The Court of Claims should have denied the defendant’s motion pursuant to Court of Claims Act §§ 10 and 11 to dismiss so much of the claim as sought to recover damages for the decedent’s conscious pain and suffering arising from medical malpractice. Contrary to the defendant’s contention and the court’s conclusion, the notice of intention filed by the claimant on April 19, 2006, was not invalid on the ground that the claimant lacked the authority to file it on behalf of the decedent, as the notice may be given by “any interested person” … . The Court of Appeals’ decision in Lichtenstein v State (93 NY2d 911) does not compel a different result, as that case involved the filing of a claim itself, as opposed to a notice of intention to file a claim. Matter of Dolce v State of New York, 2017 NY Slip Op 05434, 2nd Dept 7-5-17

COURT OF CLAIMS (NOTICE OF INTENTION TO FILE A CLAIM, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)/NOTICE OF INTENTION TO FILE A CLAIM (COURT OF CLAIMS, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)/TRUSTS AND ESTATES (COURT OF CLAIMS, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)

July 5, 2017

Civil Procedure, Court of Claims, Limited Liability Company Law

ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF.

The Third Department, reversing the Court of Claims, determined claimant limited liability company’s (LLC’s) notice of claim could be amended to add an attorney’s signature. The notice of claim was timely filed pro se. The defendant argued that the failure to have the claim filed by an attorney representing the LLC violated CPLR 321 (a) and was a jurisdictional defect. The Third Department disagreed, finding the application of CPLR 321 (a) flexible and the related requirement nonjurisdictional. The court also noted that the claimant’s demand for equitable relief was not incidental to the requested monetary relief and therefore must be dismissed as beyond the jurisdiction of the Court of Claims:

… [D]efendant does not point to any service or filing provision — or any other provision — of the Court of Claims Act that prohibits claimant from pro se representation. Instead, defendant relies on CPLR 321 (a), which provides that, subject to express exceptions, a “corporation or voluntary association shall appear by attorney” to “prosecute or defend a civil action,” and “like a corporation or a voluntary association, [an] LLC may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York” … . Thus, as an initial matter, we conclude that compliance with CPLR 321 (a) does not implicate subject matter jurisdiction, as compliance with that provision is not a prerequisite to the waiver of sovereign immunity pursuant to the Court of Claims Act … . * * *

… [G]iven the flexibility of the prohibition on corporate pro se representation and the Legislature’s express intent that technical irregularities in filing are subject to correction, absent prejudice and upon just terms … we hold that, under these circumstances, the irregularity of claimant’s initial filing was one that the Court of Claims could have disregarded, given counsel’s subsequent appearance on behalf of claimant, by granting so much of claimant’s motion to amend the claim as added counsel’s signature … . Hamilton Livery Leasing, LLC v State of New York, 2017 NY Slip Op 04943, 3rd Dept 6-15-17

COURT OF CLAIMS (LIMITED LIABILITY COMPANY, EQUITABLE RELIEF, ATTORNEYS, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/CORPORATION LAW (LIMITED LIABILITY COMPANIES, COURT OF CLAIMS, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT)/ATTORNEYS (LIMITED LIABILITY COMPANIES, COURT OF CLAIMS, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/NOTICE OF CLAIM (COURT OF CLAIMS, LIMITED LIABILITY COMPANIES, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/EQUITABLE RELIEF (COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/CIVIL PROCEDURE (COURT OF CLAIMS, LIMITED LIABILITY COMPANIES, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/LIMITED LIABILITY COMPANIES (COURT OF CLAIMS, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT)

June 15, 2017

Court of Claims, Negligence

CLAIMANT STRUCK A DOWNED LIGHT POLE WHICH HAD ROTTED BELOW GROUND, STATE DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION.

The Second Department determined the state did not have actual or constructive notice that a light pole was rotten. Claimant was injured when his vehicle struck a downed pole. The rot was not visible above ground. Evidence that rot was visible on other poles did not provide adequate notice:

Here, the Court of Claims correctly concluded that the claimant failed to establish that the State had either actual or constructive notice of any dangerous condition of the subject light pole. Rather, the evidence established that the rot on the pole was at the bottom of the pole, which was buried between six and seven feet below ground. Thus, a reasonable inspection would not have revealed the dangerous condition. The claimant’s evidence that a witness noticed rot on some of the wooden poles along Ocean Parkway during the prior 15 years is insufficient to provide notice regarding the specific pole involved in the accident. “A general awareness of a recurring problem in insufficient, without more, to establish constructive notice of the particular condition that caused the accident” … . Jeffries v State of New York, 2017 NY Slip Op 02409, 2nd Dept 3-29-17

March 29, 2017

FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT).

MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS HIGHWAY ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, LAW OFFICE FAILURE NOT AN ADEQUATE EXCUSE (SECOND DEPT).

NOTICE OF INTENTION INSUFFICIENTLY SPECIFIC ABOUT THE TIME AND PLACE OF THE ALLEGED SEXUAL HARASSMENT AND EMPLOYMENT DISCRIMINATION, CLAIMS PROPERLY DISMISSED (FOURTH DEPT).

PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT).

STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT).

NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT.

ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF.

CLAIMANT STRUCK A DOWNED LIGHT POLE WHICH HAD ROTTED BELOW GROUND, STATE DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION.

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