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MOTION TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, CRITERIA FOR LATE NOTICE IN THE COURT OF CLAIMS EXPLAINED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimants' motion to file a late notice of claim in this medical malpractice action should not have been granted:

“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 of New York 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” … . …

The claimants failed to demonstrate a reasonable excuse for the delay of more than one year and eight months in seeking leave to file a late claim. …

“Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury” on the claimants' decedent attributable to malpractice or negligence … . …

The claimants also failed to demonstrate that the defendant had an opportunity to timely investigate the facts underlying the claim, as well as locate and examine witnesses while their memories of the facts were still fresh … . …

In addition, the claimants failed to demonstrate a potentially meritorious cause of action based on their allegations of medical malpractice, since they failed to provide an affidavit of merit from a physician … . Decker v State of New York, 2018 NY Slip Op 05751, Second Dept 8-15-18

COURT OF CLAIMS (MOTION TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, CRITERIA FOR LATE NOTICE IN THE COURT OF CLAIMS EXPLAINED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, (MOTION TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, CRITERIA FOR LATE NOTICE IN THE COURT OF CLAIMS EXPLAINED (SECOND DEPT))/MEDICAL MALPRACTICE (COURT OF CLAIMS, NOTICE OF CLAIM, MOTION TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, CRITERIA FOR LATE NOTICE IN THE COURT OF CLAIMS EXPLAINED (SECOND DEPT))/NEGLIGENCE (COURT OF CLAIMS, NOTICE OF CLAIM, MOTION TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, CRITERIA FOR LATE NOTICE IN THE COURT OF CLAIMS EXPLAINED (SECOND DEPT))

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NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT).

The Third Department determined the claimant, an inmate, did not have a private right of action for negligent performance of a governmental function against the Board of Parole. Claimant alleged the board did not comply with the Executive Law by promulgating certain written procedures for assessing an inmate’s eligibility for parole:

Inasmuch as Executive Law article 12-B, which sets forth the procedures governing parole, does not expressly authorize a private right of action for claimant to recover civil damages for a violation of its provisions, recovery may only be obtained if a private right of action may be implied … . “One may be fairly implied when (1) [claimant] is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme” … . “If one of these prerequisites is lacking, the claim will fail” … .

We agree with the Court of Claims that a private action may not be fairly implied here. The Legislature provides recourse under CPLR article 78 for inmates to address perceived instances where the Board did not satisfy its statutory obligations in making parole release determinations… . As the Legislature has established procedures for review of parole release decisions, “it is fair to infer that had it intended to create a private right of action . . ., it would have specifically done so” … . Accordingly, permitting a private action here would be inconsistent with the legislative scheme … . Franza v State of New York, 2018 NY Slip Op 05641, Third Dept 8-2-18

CRIMINAL LAW  NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/ADMINISTRATIVE LAW (CRIMINAL LAW, PAROLE, NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/COURT OF CLAIMS (PAROLE, NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/PAROLE (NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))/NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION  NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT))

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SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined defendant’s motion for summary judgment in this ice-skating slip and fall case should not have been granted. The claimant could not assume the risk created by a negligently maintained ice surface, and claimant’s awareness of the dangerous condition relates only to the issue of comparative fault (which does not preclude summary judgment):

We … agree with claimant that her claim is not barred by the doctrine of assumption of the risk. It is well settled that “[a claimant] will not be held to have assumed those risks that are not inherent . . . , i.e., not ordinary and necessary in the sport” … . Although the risk of falling while ice skating is ” inherent in and arise[s] out of the nature of the sport generally’ ” … , we conclude that skating on a negligently maintained ice surface is not a risk that is inherent in the sport. Contrary to defendant’s contention, under the circumstances presented here, claimant’s awareness of the poor ice conditions and her decision to continue skating for some period of time, apparently to have a photograph taken, relate only to the issue of her comparative fault, if any … . Wyzykowski v State of New York, 2018 NY Slip Op 04875, Fourth Dept 6-29-18

​NEGLIGENCE (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SLIP AND FALL  (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ICE SKATING (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ASSUMPTION OF RISK (ICE SKATING, (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/COMPARATIVE NEGLIGENCE (ICE SKATING, SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SUMMARY JUDGMENT (COMPARATIVE NEGLIGENCE, SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/COURT OF CLAIMS (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT)

The Second Department noted that the defendant’s (NYS’s) failure to plead a jurisdictional defect as a defense (defendant had not timely filed and served notice of claim) waived the defect. The claimant did not present expert evidence to support the medical malpractice claim and therefore did not demonstrate that any alleged deviation from the accepted standard of care was the proximate case of his injury. The claimant alleged a negligent failure to diagnose a urinary tract infection (UTI):

“To establish a prima facie case of medical malpractice, a plaintiff must set forth (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach was the proximate cause of his or her injuries”… . Further, where, as here, the subject matter (UTIs) and treatment thereof are “not within the ordinary experience and knowledge of laypersons”… , the claimant must establish a prima facie case of medical malpractice through expert medical opinion … . Whitfield v State of New York, 2018 NY Slip Op 04773, Second Dept 6-27-18

COURT OF CLAIMS (FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/MEDICAL MALPRACTICE (EXPERT OPINION, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EVIDENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))

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DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined that the defect which caused the claimant’s slip and fall was not trivial as a matter of law and there were questions of fact about the defendant’s constructive and actual notice of the defect. Claimant is incarcerated and the slip and fall occurred in a walkway at a correctional facility:​

In claimant’s deposition testimony, which defendant submitted in support of the motion, claimant testified that he was proceeding along a walkway from the housing area to the commissary. It had rained, and a large puddle of water had accumulated on the walkway. Claimant attempted to step over the flooded portion of the walkway, but his foot came down on a portion of the walkway that was cracked and damaged. The concrete shifted under his foot, causing him to lose his balance, and he fell. …​

We also agree with claimant that defendant failed to meet its burden of establishing that it lacked actual or constructive notice of the allegedly dangerous condition … . In support of the motion, defendant submitted the affidavit of a correction officer who had worked at the prison for the prior 27 years. The correction officer averred that he was familiar with the walkway and its condition before claimant fell, that the concrete was broken and uneven, and that water can gather there after it rains, but he did not consider the condition to be dangerous. Furthermore, the correction officer averred that he periodically walked the premises to look for anything in need of repair, and claimant testified at his deposition that the walkway was cracked prior to his arrival at the prison and that it flooded every time it rained. Bennett v State of New York, 2018 NY Slip Op 04212, Fourth Dept 6-8-18

NEGLIGENCE (SLIP AND FALL, DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SLIP AND FALL (DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRIVIAL DEFECT (SLIP AND FALL,  DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))​

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STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the state was properly held 100% liable in this fatal motorcycle-truck collision case. The truck driver testified that he looked both ways and didn’t see the motorcycle before pulling out into the motorcycle’s lane of traffic. There had been 14 right-angle collisions at this intersection. The state started but never finished an investigation into whether safety measures should be implemented. The Court of Appeals held the plaintiff need not demonstrate the state could have timely made effective safety improvements, i.e., a four-way stop and/or a reduction of the speed limit. The fact that the truck driver violated the Vehicle and Traffic Law did not require the apportionment of some liability to the truck driver:

The State agrees it cannot invoke qualified immunity because it did not complete the safety study; therefore, ordinary rules of negligence apply … . The State has a nondelegable duty to keep its roads reasonably safe … , and the State breaches that duty “when [it] is made aware of a dangerous highway condition and does not take action to remedy it”… . A breach proximately causes harm if it is a substantial factor in the plaintiff’s injury … . * * *

We have never required accident victims to identify a specific remedy and prove it would have been timely implemented and prevented the accident. * * *

Here, there is record support for the finding that the State’s breach was a proximate cause of the accident. * * *

Once on notice of the dangerous condition, it was the State’s burden to take reasonable steps in a reasonable amount of time. Instead, it did nothing. That right-angle collisions would continue to occur absent the adoption of some safety measure is hardly surprising. “[T]he most significant inquiry in the proximate cause analysis is often that of foreseeability”… . Where, as here, the risk of harm created by the defendant corresponds to the harm that actually resulted, we cannot say that proximate cause is lacking as a matter of law. Brown v State of New York, 2018 NY Slip Op 04029, CtApp 6-7-18

NEGLIGENCE (TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/COURT OF CLAIMS (INTERSECTION SAFETY, TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/INTERSECTIONS  (TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/HIGHWAYS AND ROADS (INTERSECTIONS, TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/TRAFFIC ACCIDENTS (INTERSECTIONS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, INTERSECTIONS,  STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))

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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))

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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))

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))

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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))

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