Calverley v. State

• Decision Date: 29 October 2020
• Docket Number: 527219
• Citation: 187 A.D.3d 1426,134 N.Y.S.3d 554
• Parties: Jennifer Shultz CALVERLEY, as Personal Representative of the Estate of Dale Scott Calverley, Deceased, Respondent, v. STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 1426
134 N.Y.S.3d 554

Jennifer Shultz CALVERLEY, as Personal Representative of the Estate of Dale Scott Calverley, Deceased, Respondent,
v.
STATE of New York, Appellant.

527219

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 11, 2020
Decided and Entered: October 29, 2020

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from an order of the Court of Claims (McCarthy, J.), entered May 30, 2018, which granted claimant's application pursuant to Court of Claims Act § 10(6) for permission to file a late claim.

In August 2015, Dale Scott Calverley (hereinafter decedent) drowned while swimming at the base of Buttermilk Falls, a popular destination along the Raquette River in the Adirondack Park, located in the Town of Long Lake, Hamilton County. Decedent and claimant, his wife, were on a camping trip in the Adirondack region with their three children. They arrived at a pull-off on North Point Road and observed signage denoting the area as Buttermilk Falls. After parking in the pull-off, which can accommodate 10 to 15 vehicles, the family followed a short path to the waterfall basin where numerous people were swimming. Decedent and his children entered the water, which claimant described as "smooth and calm" with no visible current. After swimming for approximately 20 minutes, decedent swam towards the base of the waterfall. Shortly thereafter, decedent – an experienced swimmer and former ocean lifeguard – appeared "stuck in one place." Onlookers observed decedent go under the water, resurfacing face down and motionless. Several persons removed decedent from the water and unsuccessfully administered CPR. Following an on-scene investigation by the State Police, decedent's death was recorded as an accidental drowning due to the failure to escape an underwater current.

Claimant was appointed the personal representative of decedent's estate on August

134 N.Y.S.3d 556

2, 2016. In July 2017 – after the 90–day deadline to file a claim against defendant had expired (see Court of Claims Act § 10[2] ) – claimant sought permission to file a late claim pursuant to Court of Claims Act § 10(6).¹ The proposed claim alleged that decedent drowned due to the negligence, carelessness and recklessness of the Adirondack Park Agency and the Department of Environmental Conservation in their management of Buttermilk Falls by failing to warn visitors of a dangerous condition, i.e., an alleged latent underwater current at the base of the waterfall. Defendant opposed the motion. Upon analyzing the factors set forth in Court of Claims Act § 10(6), the Court of Claims granted claimant's motion, finding, among other things, that there was no prejudice to defendant and that the claim had the appearance of merit. Defendant appeals.

Defendant argues that the Court of Claims abused its discretion in granting claimant's motion because the proposed claim lacks the appearance of merit.² We disagree. "The decision whether to grant or deny an application to file a late claim lies within the broad discretion of the Court of Claims and should not be disturbed absent a clear abuse of that discretion" ( Langner v. State of New York, 65 A.D.3d 780, 782–783, 883 N.Y.S.2d 667 [2009] [internal quotation marks and citations omitted]; see Court of Claims Act § 10[6] ; Matter of Barnes v. State of New York, 158 A.D.3d 961, 962, 72 N.Y.S.3d 603 [2018] ). When entertaining such an application, the court must consider, among other factors, "whether the claim appears to be meritorious" ( Court of Claims Act § 10[6] [emphasis added]; see Matter of Barnes v. State of New York, 158 A.D.3d at 962 n., 72 N.Y.S.3d 603 ). Although no single factor is controlling (see Bay Terrace Coop. Section IV v. New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 N.Y.2d 979, 981, 449 N.Y.S.2d 185, 434 N.E.2d 254 [1982] ), "it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favo r the granting of the request" ( Prusack v. State of New York, 117 A.D.2d 729, 730, 498 N.Y.S.2d 455 [1986] ; see Shah v. State of New York, 178 A.D.3d 871, 872, 111 N.Y.S.3d 910 [2019], lv dismissed 35 N.Y.3d 982, 125 N.Y.S.3d 72, 148 N.E.3d 536 [2020] ). A claim has the appearance of merit so long as it is "not ... patently groundless, frivolous or legally defective, and the record as a whole ... give[s] reasonable cause to believe that a valid cause of action exists" ( Sands v. State of New York, 49 A.D.3d 444, 444, 853 N.Y.S.2d 555 [2008] ; see Matter of Martinez v. State of New York, 62 A.D.3d 1225, 1227, 881 N.Y.S.2d 190 [2009] ; Goldberg v. State of New York, 122 A.D.2d 248, 249, 505 N.Y.S.2d 443 [1986] ).

Upon our review of the record, we cannot say that the claim raised is patently groundless, frivolous or legally defective. Contrary to defendant's contentions, claimant has presented a potential claim that defendant knew or should have known of the dangerous underwater current at the waterfall basin at Buttermilk Falls and should have taken affirmative steps to warn visitors of that condition. Although defendant asserts that the Department of

134 N.Y.S.3d 557

Environmental Conservation's management of Buttermilk Falls is a governmental function entitled to the protection of governmental immunity, the record does not, at this early stage, foreclose the possibility that defendant's alleged failures implicate a proprietary function, rather than a governmental one, so as to defeat the governmental immunity defense (see generally Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ; Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 447–448, 933 N.Y.S.2d 164, 957 N.E.2d 733 [2011], cert denied 568 U.S. 817, 133 S.Ct. 133, 184 L.Ed.2d 28 [2012] ). In our view, claimant's submissions were sufficient, at this stage in the proceedings, to demonstrate an appearance of merit to her claim (see Court of Claims Act § 10[6] ; Tucholski v. State of New York, 122 A.D.3d 612, 612–613, 996 N.Y.S.2d 97 [2014] ). Accordingly, the Court of Claims did not abuse its discretion in granting claimant's motion to file a late notice of claim (see Perez v. State of New York, 75 A.D.2d 683, 684, 426 N.Y.S.2d 876 [1980] ).

Clark, Devine and Pritzker, JJ., concur.

Lynch, J.P. (concurring).

I agree with the majority that the Court of Claims' order should be affirmed and that claimant has presented a potential claim that defendant knew or should have known of the dangerous underwater current at the base of the waterfall. I write separately to express my view that the issue of governmental immunity can and should be decided on the merits in resolving this appeal. Defendant expressly raised the issue of governmental immunity in response to claimant's motion to file a late claim under Court of Claims Act § 10(6) and seeks a dismissal of the claim. Specifically, defendant maintains that the proposed claim lacks even the appearance of merit as required under Court of Claims Act § 10(6) because the management of Buttermilk Falls by the Department of Environmental Conservation (hereinafter DEC) is a governmental function. In a similar procedural scenario, the Court of Appeals determined, in Sebastian v. State of New York, 93 N.Y.2d 790, 792–793, 698 N.Y.S.2d 601, 720 N.E.2d 878 (1999), that a motion brought under Court of Claims Act § 10(6) to file a late claim was properly denied because defendant was immune from liability – i.e., the governmental immunity issue was decided on the merits (see also Matter of Karras v. State of New York, 48 A.D.2d 748, 748, 368 N.Y.S.2d 327 [1975], lv denied 37 N.Y.2d 708, 375 N.Y.S.2d 1027, 338 N.E.2d 330 [1975] ). We should do the same here, not just for purposes of judicial economy, but primarily because the question of law presented can be addressed on this record (see Sebastian v. State of New York, 93 N.Y.2d at 792–793, 698 N.Y.S.2d 601, 720 N.E.2d 878 ; Mon v. City of New York, 78 N.Y.2d 309, 313, 574 N.Y.S.2d 529, 579 N.E.2d 689 [1991] ).³ Defendant has already submitted the evidence upon which it relies in support of its contention that its failure to post warning signs at the base of Buttermilk Falls stems from a governmental function taken in the exercise of its discretion, i.e., the self sufficiency directive set forth in the Adirondack Park State Land Master Plan (hereinafter the Master Plan), which is contained in the record before the Court of Claims.

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