Rizzo v. State of NY

• Decision Date: 07 October 2003
• Citation: 2 Misc.3d 829,772 N.Y.S.2d 210
• Parties: WINIFRED RIZZO et al., Claimants,<BR>v.<BR>STATE OF NEW YORK, Defendant. (Motion No. M-66833.)
• Court: New York Court of Claims

2 Misc.3d 829

772 N.Y.S.2d 210

WINIFRED RIZZO et al., Claimants,

v.STATE OF NEW YORK, Defendant. (Motion No. M-66833.)

October 7, 2003.

Stanley Law Offices (Robert A. Quattrocci of counsel), for claimants.

Eliot Spitzer, Attorney General, and Pinsky & Skandalis (George Skandalis of counsel), for defendant.

OPINION OF THE COURT

DIANE L. FITZPATRICK, J.

Movant^[*] and her husband, bring a motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant strenuously opposes the motion.

The proposed claim asserts, in pertinent part, the following:

"Paragraph 3: This incident occurred on or about September 1, 2002. The claimants were attending the New York State Fair at the State Fairgrounds, Syracuse, New York and walking back from the Indian Village portion of the fair. As they were walking back they stopped at a group of vending machines located in the area. As Mrs. Rizzo attempted to purchase a soft drink a large sign fell from above striking the claimant ...

"Paragraph 6: Upon information and belief and at all times hereinafter mentioned, said accident was caused by the negligence, carelessness and recklessness of the State of New York, their employees, agents and/or servants in their failure to properly construct and install the sign; the State of New York was further negligent in failing to properly train and instruct their agents, services [sic] and/or employees in the proper installation and construction of the sign; the State of New York, their agents, servants and/or employees were further negligent in their failure to correct the dangerous condition which they knew or should have known existed with the unsafe and improper installation of the signs that existed on the above referenced premises which were under the possession and control of the State of New York and the State of New York failed to use reasonable and ordinary due care under the circumstances.

"Paragraph 7: Upon information and belief, the State of New York, their agents, servants and/or employees had actual and/or constructive notice of said dangerous condition, and/or created, caused or contributed to said dangerous conditions that existed with the unsafe and improper installation of signs which were under the possession and control of the State of New York.

"Paragraph 8: That the State of New York is liable to claimants under the doctrine of res ipsa loquitur."

Court of Claims Act § 10 (6) allows a claimant who has failed to timely serve a notice of intention or who has failed to file and timely serve a claim within the time frame set forth in Court of Claims Act § 10 to make an application to the court to file such a claim, in the discretion of the court, at any time before an action asserting a like claim against a citizen of the state would be barred under article 2 of the CPLR (Court of Claims Act § 10 [6]). Movants' motion is timely (Court of Claims Act § 10 [6]; CPLR 214 [5]).

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10 (6), and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]). Instead, it is a balancing of all of the factors by the court which may warrant the granting of the application to file and serve a late claim.

The first factor is whether the delay in filing the claim is excusable. Movant's attorney asserts that the reason movant did not timely file and serve a claim is because the State was paying for her medical expenses. It was only when the payments ceased that movant was motivated to pursue legal recourse. This is not a valid excuse (see, Matter of Professional Charter Servs. v State of New York, 166 Misc 2d 306 [1995] [negotiating with the State insufficient excuse]). As a result, this factor must weigh against granting movants' application.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. It is undisputed that movant reported her injury to a state trooper around gate 3 immediately after the incident and then proceeded to the "aid station" where movant gave a statement to another trooper regarding how she had incurred her alleged injury. Defendant acknowledges that nine days after movant claims she was injured, she contacted Richard Guanciale, business manager for the New York State Fair, seeking payment of her medical expenses. Nonetheless, defendant argues that the State had no notice that movant was contemplating a lawsuit and thus did not investigate until later. This investigation was done with movant and her husband a few months after the State Fair had closed at which point movant could not remember exactly where she was injured thereby preventing the State from investigating this matter further. It is defendant's position that as a result of the delay in proper notification, defendant will be prejudiced if the proposed claim is allowed to be filed.

Court of Claims Act § 10 (6) requires that the court consider whether the State had timely notice of the facts underlying the claim and an opportunity to investigate. The notice requirement is fulfilled when the facts giving rise to the claim have been timely provided to someone in authority in the department or agency responsible or to the legal department, such as the Attorney General (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 7-8 [1977]). Typically, a report made to a state trooper is not considered notice to the State because the report does not alert anyone in authority at the state department of a potential claim (id. at 7-8; United Servs. Auto. Assoc. v State of New York, Ct Cl, Jan. 5, 1999, Read, J., Motion No. M-58225). In this case, however, defendant acknowledges that Mr. Guanciale reviewed daily, all incident reports prepared each day during the State Fair. Thus, he would have reviewed the police blotter with movant's complaints to the state trooper at the first aid station. The police blotter, dated Sunday, September 1, 2002, at 5:30 P.M., indicates Winifred M. Rizzo, complainant, reported an arm injury. The narrative provides: "C-1 [complainant 1] was getting a soda from machine by Gate 3 and wind blew over metal sign injuring C-1's right arm."

In determining whether information provided by a potential claimant to the defendant is notice to the State, depends upon whether the information provides some indication that the incident was caused by the State's negligence (United Servs. Auto. Assoc. v State of New York, Ct Cl, supra). There is nothing in the police blotter narrative which would suggest negligence on the part of the State. The sign falling over is attributed to the wind. Moreover, Mr. Guanciale estimates that he reviews between 550 to 600 incident reports during the State Fair; there is nothing in this narrative that would have alerted him of a potential claim.

On September 10, 2002, movant spoke to Mr. Guanciale, and advised that she was injured at the fair and sought coverage of her medical expenses. Mr. Guanciale confirmed the incident with the state police log, and agreed to permit movant to submit her medical bills to the insurance carrier for the State Fair. This placed the State on notice that this incident could lead to litigation. Yet even with this knowledge, the State did not have a full opportunity to investigate the facts in order to assess its potential for liability since movants could not specify where the sign fell. The police blotter indicates it was by gate 3; movant's statement to the insurance investigator, as well as her affidavit and the proposed claim, indicate that the sign fell somewhere on her way back from the Indian village. A review of the map attached to defendant's opposition papers shows there is a significant area between these two points, traversed during the State Fair by thousands of people and occupied by many exhibitors and vendors. Without a more exact location the State's opportunity to investigate was transparent, as...