Avila v. State

• Decision Date: 19 March 1986
• Citation: 131 Misc.2d 449,500 N.Y.S.2d 626
• Parties: Carmen AVILA and Hector Avila, Claimants, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 626

500 N.Y.S.2d 626

131 Misc.2d 449

Carmen AVILA and Hector Avila, Claimants, v. The STATE of New York, Defendant.

Court of Claims of New York.

March 19, 1986.

Herman & Beinin (Ernest L. Fox, New York City, of counsel), for claimants.

Robert Abrams, Atty. Gen. (William P. Kleen, Asst. Atty. Gen., New York City, of counsel), for defendant.

OPINION

GERARD M. WEISBERG, Judge.

Claimants, Carmen and Hector Avila, have moved for permission to file a late claim against defendant, State of New York. Opposition is based primarily on a quotation from a 1976 decision of the Appellate Division, Third Department. Because this argument has recently and frequently been urged on similar applications, the time has now come to put it to rest.

The underlying incident occurred on August 28, 1985 at an office of the New York State Department of Motor Vehicles (Department), a facility of the defendant. On that day, Ms. Avila allegedly slipped and fell to the ground due to the undisputed presence of a puddle of water on the floor. The liquid had leaked from an air conditioner. A cause of action is sought to be interposed based on the negligence in allowing this condition to exist. Because over 90 days have elapsed since the event, this motion is necessary. (Court of Claims Act § 10[6].)

Of the six factors to be considered, defendant primarily relies on the combined elements of prejudice, absence of notice, and lack of opportunity to investigate. Specifically, the State contends that the Attorney-General did not receive notice of the claim within 90 days of the occurrence and, therefore, these factors must be weighed in its favor. In support, it quotes language from Andriola v. State of New York, 53 A.D.2d 966, 385 N.Y.S.2d 834, to the effect that where a claim is brought against the State "timely service on the Attorney General is ... required, since such service provides the only actual notice to the State body or officer responsible for the investigation and litigation of the claim." (Andriola v. State of New York, supra, p. 968, 385 N.Y.S.2d 834.)

Defendant's reliance on Andriola is misplaced. That decision addresses the requirement of service on the Attorney-General in the first instance, not in the context of a motion for permission to file a late claim. Service is mandated by Court of Claims Act § 10 to put "the State in a position to make a prompt investigation of the facts and circumstances out of which the [claim] arose [citation omitted]." (Matter of Welch v. State of New York, 71 A.D.2d 494, 496, 423 N.Y.S.2d 102, lv. denied 50 N.Y.2d 802, 430 N.Y.S.2d 1026, 407 N.E.2d 1354.)

If service does not take place, jurisdiction does not attach. (Calderazzo v. State of New York, 74 A.D.2d 954, 426 N.Y.S.2d 160.) In such cases, the Court, on motion, has the discretion to permit a late filing. One of the factors then to be considered is whether the State received notice of the facts underlying the claim. This issue is separate and distinct from the question of whether the State was served within the time limitations set forth in the subsections one through four of the Court of Claims Act § 10. The language quoted by the Attorney-General from Andriola deals with this latter question and not with the considerations relevant to a motion for permission to file a late claim.

Attached to claimants' moving papers is a copy of an accident report, dated August 30, 1985, prepared by the Department's Office Manager with respect to the incident. Also included is a copy of a statement written by a Security Officer pertaining to the event on the day that it occurred. This was submitted to its "Asst. Director" who appears to be the individual who prepared the report of August 30. These documents establish that actual notice of the essential facts constituting the claim had reached the supervisory level. This was notice to the State. (Matter of Cooper v. City of Rochester, 84 A.D.2d 947, 446 N.Y.S.2d 644; Carmen v. State of New York, 49 A.D.2d 965, 373 N.Y.S.2d 698; see Costello v. Barr, 83 A.D.2d 952, 443 N.Y.S.2d 31; Matter of Wade v. City of New York, 65 A.D.2d 534, 409 N.Y.S.2d 404.) Also, not only did the State have the opportunity to explore the circumstances surrounding the mishap, based on these exhibits, it did, in fact, investigate the claim. Thus, even though a transitory condition may have been involved, the State will not be prejudiced by the granting of this motion. (Matter of Newson v. City of New York, 87 A.D.2d 630, 448 N.Y.S.2d 224; cf. Malek v. State of New York, 92 A.D.2d 659, 460 N.Y.S.2d 165.)

The factual and legal allegations contained in the moving papers give the appearance of merit for a claim based on the presence of a dangerous physical condition. (Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d...