Leo M. Gustafson, Movant, v. The State of New York, Defendant. (2023)

Movant Leo M. Gustafson seeks permission to file a late claim pursuant to Court of Claims Act (CCA) § 10(6). According to the proposed claim, movant was an employee of a non-party construction and engineering firm performing work on a project at Fishkill Correctional Facility  ¹ when he was injured after falling down an interior staircase in a state-owned building located within the gated perimeter of the facility. Movant alleges that defendant was negligent in creating the hazard or failing to maintain the staircase in a reasonably safe condition. Defendant opposes the motion. After consideration of all the relevant factors, the motion is granted in part and denied in part as explained below.

As an initial matter, and as defendant concedes, this motion is timely. It is undisputed that no claim or notice of intention to file a claim was timely served upon the Attorney General within 90 days of accrual of the claim on March 4, 2021 (see CCA § 10[3]). However, movant brought this application for late claim relief on June 2, 2022, well within the underlying three-year statute of limitations for negligence claims (see CPLR 214[5]). Accordingly, the application is timely (see CCA § 10[6]).

CCA § 10(6) enumerates six factors to be weighed by the Court in connection with a late claim motion: (1) whether the delay was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the delay resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. This list is not exhaustive and the presence or absence of any one factor is not dispositive; rather, the Court in its discretion balances these factors in making its determination (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]; see also Tucholski v State of New York, 122 AD3d 612, 612 [2d Dept 2014]).

As to the delay in filing, movant contends that his medical condition in the months after the accident prevented him from bringing a timely claim or serving a notice of intention to file a claim within the requisite 90 days. As defendant notes, movant's initial submissions fail to include either medical records or a physician's affidavit, which is required to support a finding of a reasonable excuse for purposes of CCA § 10(6) based on a potential claimant's physical or medical condition (see Goldstein v State of New York, 75 AD2d 613, 614 [2d Dept 1980]; see Crofut v State of New York, 279 AD 681, 682 [3d Dept 1951], aff'd 303 NY 897 [1952]; see also Bloom v State of New York, 5 AD2d 930, 931 [3d Dept 1958]; Carmen v State of New York, 49 AD2d 965, 965-966 [3d Dept 1975]; Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]; McGaughy v State of New York, 55 AD2d 823, 823 [4th Dept 1976]; Wolf v State of New York, 140 AD2d 692, 692 [2d Dept 1988]; cf. Cabral v State of New York, 149 AD2d 453, 453 [2d Dept 1989] [affirming denial of late claim relief where only support offered to explain delay was a "conclusory assertion by the claimant's counsel" regarding the claimant's alleged hospitalization]). Even taking into consideration the handful of medical records movant submitted with his reply, however, he has failed to establish a reasonable excuse for the delay in filing (see Carmen, 49 AD2d at 966 [stating that, although a movant need not "establish [the] complete physical or mental inability to file on time," the excuse nevertheless must be "reasonable"] [internal quotation marks omitted]).

Movant's medical records indicate that, two days after the incident, he visited an urgent care facility for back, hip, and rib pain on his left side. The examining physician's notes indicate that movant was not in acute distress at that time; had normal gait and posture, as well as normal affect and judgment; and was alert and oriented to time, place, and person. Movant was sent home with prescription pain relievers. Approximately ten days following the incident, and after developing edema in both legs and shortness of breath, movant went to the emergency room where he was diagnosed with two fractured ribs, as well as heart failure, hypertension, and coronary artery disease, among other related cardiac diagnoses. Movant, who was then 73 years old, underwent triple coronary artery bypass surgery and was discharged two weeks later, on March 31, 2021. The hospital's discharge summary indicates that, on that date, movant was doing well and had an excellent cardiac index; was alert and had clear speech; had no edema and was able to move all four extremities spontaneously; could breathe well; and ambulated without difficulty. Movant was prescribed medications for his condition and given follow-up appointments with various providers for continued cardiac care. Although the discharging physician noted that movant was not to do any heavy lifting or driving upon his discharge, movant was directed to walk daily and otherwise increase his activity gradually. The records further indicate that movant was readmitted briefly in September 2021 for outpatient surgery to implant a pacemaker.

To be sure, movant's cardiac condition, which came to light shortly after his fall, was serious and required immediate medical treatment. But the medical records do not support movant's assertion in his affidavit that he was thereafter unable to retain counsel or otherwise address his personal affairs within the requisite 90-day period, which expired on June 2, 2021. As discussed above, following movant's cardiac surgery, he was discharged less than one month after the alleged fall, and more than two months before the expiration of the claim commencement window. The medical records further indicate that movant was alert, oriented, and able to speak and ambulate as of the date of discharge. And although movant engaged in routine follow-up care and treatment over the ensuing weeks and months, unlike in the cases cited above, movant has submitted no support for his contention that such continued care was of a nature or scope that prevented or impacted his ability to bring a timely claim (see Crane v State of New York, 29 AD2d 1001, 1002 [3d Dept 1968] [reversing grant of late claim relief and finding no reasonable excuse for delay in filing where, although the movant was in wheelchair for nearly two months and " 'found it difficult to go out,' " no indication existed that she was "bed-ridden, confined to the hospital, in severe pain or under continuous treatment with strong drugs," or had a "restrict[ed] ability to use the phone"]; cf. Goines v State of New York, 2023 NY Slip Op 23032, 2023 WL 1790783 [Ct Cl 2023] [finding reasonable excuse for delay in bringing claim where the movant was rendered paraplegic as a result of the underlying accident and was hospitalized for nearly the entire 90-day claim period, as well as unable to walk, speak, or use his hands]). Similarly, movant has offered no evidentiary support for his additional—and conclusory—assertion that he lacked the mental capacity to timely file a claim. The unreasonableness of the delay, alone, however, does not necessarily preclude late claim relief (see Bay Terrace, 55 NY2d at 981).

Turning to the related factors of the State's notice of the essential facts, its opportunity to investigate, and whether it will be substantially prejudiced by a late filing, defendant concedes that it was notified of movant's trip and fall the day after it occurred (see Ryan Affirm. in Opp., ¶ 19, Exh. 1). The project's safety manager, who appears to be an employee of the New York State Office of General Services, sent an email on that date to several other individuals at that agency, the subject line of which indicated that it was an accident notification. The email included movant's name, a detailed description of the incident, and the date, time, and exact location where it occurred. In addition, movant's affidavit in support of the motion avers that he was contacted by the same project safety manager by telephone on multiple occasions and that, during those calls, movant recounted the incident and his alleged injuries to the manager. Although defendant contends that the State conducted no follow-up investigation of the incident, there can be no serious dispute that it had the opportunity to do so once it received the email notification. The State's equivocation on whether it will be prejudiced by a late claim also weighs in favor of movant (see Schnier v New York State Thruway Auth., 205 AD3d 958, 960-961 [2d Dept 2022] [holding that a finding of prejudice " 'cannot be based solely on speculation and inference,' " and State must "come forward with 'a particularized evidentiary showing' " of substantial prejudice], quoting Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 465 [2016] [discussing prejudice to a defendant in the context of General Municipal Law § 50-e]. Accordingly, these factors fall in movant's favor (see Wolf v State of New York, 140 AD2d 692, 693 [2d Dept 1988]).

Next, movant contends that he has no other alternative remedy to bringing a claim in this Court because he alleges negligence by the State on state-owned property. However, both movant and his counsel acknowledge that, as a result of this incident, movant is receiving disability payments under the Workers' Compensation Law. It is well established that workers' compensation benefits constitute an alternate remedy, albeit a partial one (see Olsen v State of New York, 45 AD3d 824, 825 [2d Dept 2007]; see also Garguiolo v New York State Thruway Auth., 145 AD2d 915, 916 [4th Dept 1988]; Malek v State of New York, 92 AD2d 659, 660 [3d Dept 1983]). In addition, it appears that movant may have claims sounding in medical malpractice against the health care providers he visited several times after the incident and who failed to diagnose his broken ribs or discover the presence of his cardiac conditions, whether or not caused by the fall. Although the availability of workers' compensation benefits does not, in and of itself, preclude late claim relief (see Swart v State of New York, 211 AD3d 881, 883 [2d Dept 2022]), inasmuch as movant has received—and apparently continues to receive—such payments, and appears to have additional available remedies, this factor weighs against granting the motion.

The final and most important factor to consider in determining this application for late claim relief is whether movant has demonstrated the appearance of a meritorious claim, because " '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 favor the granting of the request' " (Swart, 211 AD3d at 883, quoting Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; see also Calverley v State of New York, 187 AD3d 1426, 1427 [3d Dept 2020]). Movants need not establish a prima facie case at this stage of the proceedings (see Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]), but they have a heavier burden than those whose claims are timely filed (see Nyberg v State of New York, 154 Misc 2d 199, 202 [Ct Cl 1992]). A claim has the appearance of merit if 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" (Swart, 211 AD3d at 883, quoting Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; see also Calverley, 187 AD3d at 1427). In applying this standard, the Court may consider "all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of apparent merit" (Fernandez v State of New York, 43 Misc 3d 1221(A), 2014 NY Slip Op 50741[U] [Ct Cl 2014] [internal quotation omitted]).

Here, the proposed claim alleges both that defendant was negligent in creating a dangerous condition with respect to the staircase at issue and that defendant failed to maintain it in safe condition despite prior actual and constructive notice, which caused him to trip, fall, and sustain injuries. To make out a prima facie case of negligence generally, an individual must establish (1) a duty owed by defendant to that individual; (2) a breach of that duty; and (3) injury proximately resulting from that breach (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]). As relevant here, to establish a breach of duty, a claimant must show that defendant either created the dangerous condition, or had actual or constructive notice of it and failed to alleviate the condition within a reasonable time (see e.g. Buckstine v Schor, 213 AD3d 730, 731 [2d Dept 2023]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see also Chianese v Meier, 98 NY2d 270, 278 [2002] [citing Gordon]).

As an initial matter, contrary to defendant's argument that movant's allegations describing the defect and the incident are vague and confusing, movant has clearly described the location of the staircase and its ownership by the State; the nature of the staircase's allegedly defective condition; and how the condition caused him to fall down the stairs. The proposed claim states that the staircase was inside the building located on the grounds of Fishkill Correctional Facility in Beacon, New York, as defendant concedes. Defendant describes the premises as a two-story residential structure. Paragraphs 16 and 17 of the proposed claim allege that "the carpet, treads and edging on the steps of the subject staircase" were "raised, degraded, dilapidated, broken, [and] worn," and that due to such defect, movant "was caused to trip and fall and be violently precipitated through the air, forcefully striking his body on the wall at the landing of said stairwell at or about the fourth step from the bottom of the staircase" on March 4, 2021. Paragraph two of movant's affidavit similarly states that, as movant walked down the staircase on that date, his foot "became stuck on the trap-like, raised, defective tread protruding up from the edging on approximately the fourth step from the bottom of the staircase," and that he was "propelled forward" and struck "the entirety of the left side of [his] body and portions of [his] back against the wall at the landing of the stairwell" causing him injury.

To the extent defendant asserts that movant's allegations are too conclusory to carry his burden of demonstrating an appearance of merit, the Court agrees only insofar as the claim attempts to assert a theory of liability based on defendant's creation of the alleged defective condition of the staircase at issue. Movant's cursory allegations in the proposed claim that defendant created a dangerous condition by failing to provide adequate lighting and / or stairway railings are "general and conclusory, without any supporting facts" (Sevillia v State of New York, 91 AD2d 792, 792 [3d Dept 1982]). Movant makes no allegation that the State engaged in any work on the premises after it acquired the building, which defendant's opposition papers explain occurred in 1932 as part of an expansion of the former Mattawan State Hospital. Further, in describing the incident that occurred, movant makes no specific allegations about how any inadequate lighting or missing stairway railing caused or contributed to the accident. Thus, movant has failed to establish the appearance of merit of so much of the claim as alleges that defendant created a defective condition relating to the staircase which resulted in his injuries, and movant's application for late claim relief is denied to that extent.

The gravamen of movant's negligence cause of action, however, is that defendant failed to maintain the staircase in good repair and safe condition despite prior actual and constructive notice of the staircase becoming worn, degraded, and dilapidated—in particular by failing to secure the treads and carpeting on the stairway upon which movant allegedly tripped. Significantly, defendant does not refute movant's factual assertions of actual or constructive notice which, thus, must be taken as true for purposes of deciding this motion (see Sessa v State of New York, 88 Misc 2d 454, 458, [Ct Cl 1976], aff'd 63 AD2d 334 [3d Dept 1978], aff'd 47 NY2d 976 [1979]; see also Schweickert v State of New York, 64 AD2d 1026, 1026 [4th Dept 1978]).

Moreover, paragraph 18 of the proposed claim—verified by movant—alleges that defendant and its agents or employees "had knowledge and/or written, actual and/or constructive notice" of the dangerous condition of the staircase. Although, standing alone, this is a conclusory allegation, in paragraph 13 of his supporting affidavit, movant names the individuals who allegedly provided such prior written notice to defendant. Movant specifies therein that his project supervisor Jason Valero, and another employee of the construction firm, Justin Ott, had previously filed reports with Fishkill Correctional Facility and / or the Office of General Services about the "dilapidated conditions of [thier] work space and offices, as well as the condition of the defective staircase that caused [movant's] trip and fall."²

The proposed claim and movant's affidavit also sufficiently allege constructive notice. Both include allegations regarding the worn and degraded condition of the staircase that had allegedly existed for an extended period of time, and movant's affidavit adds that his work space and offices in the premises were in a dilapidated condition generally. Defendant's submission confirms that the premises was an old structure, built around 1920 and acquired by the State in 1932, and that it most recently has been used as a field office for Office of General Services construction projects at Fishkill and Downstate Correctional Facilities. Further, defendant affirmatively acknowledges (Ryan Affirm. in Opp., ¶ 8) the statement proffered by movant that movant had been employed at the site for more than a year when the accident occurred. It is well settled that constructive notice may be inferred from the appearance of a defect and whether it existed for a sufficiently long period of time for defendant to have discovered and corrected the condition, both of which are factual questions to be determined at trial (see Taylor v New York City Tr. Auth., 48 NY2d 903, 904 [1979]; Blake v City of Albany, 48 NY2d 875, 877-878 [1979]; see also Deutsch v City Univ. of New York, UID No. 2007-028-584 [Ct Cl, Sise, J., 2007] [granting late claim relief and noting that issue of actual and constructive notice are matters to be considered at trial]). Thus, to the extent movant's negligence claim is premised on the State's failure to maintain or repair the allegedly defective condition, movant's allegations are sufficient to satisfy the appearance of merit prong for late claim purposes.

Finally, in making its findings as to the appearance of merit, the Court notes that it gave no weight to movant's allegations (nor the assertions of his counsel) that movant's cardiac conditions and any injuries or damages resulting from those conditions were a direct consequence of, or exacerbated by, his March 4, 2021 fall from the staircase. Movant submitted no expert medical affidavits to support such a claim. However, under the circumstances presented here and given the nature of the underlying claim, such a failure does not preclude the grant of late claim relief to the extent determined herein because causation is a factual issue to be resolved by the fact finder at trial (see Kagan v State of New York, 221 AD2d 7, 17 [2d Dept 1996]), where such proof would be required (cf. Schreck v State of New York, 81 AD2d 882, 882 [2d Dept 1981] [holding in a medical malpractice action that an expert's affidavit establishing a causal connection between the alleged negligent acts and alleged injury is required]). In addition, no expert opinion is needed to establish the appearance of merit with respect to the element of causation insofar as it relates to the allegations that other injuries, such as movant's broken ribs, lung contusions, and back injury, occurred as a result of movant's fall (see Deutch, supra [noting that an expert's opinion is ordinarily not required to establish that a sidewalk defect might cause a pedestrian to trip and fall and sustain injuries commonly understood and assessed on the basis of everyday experience and knowledge]).

In sum, after carefully considering and weighing the relevant statutory factors, late claim relief is warranted, in part, in view of the proposed claim's appearance of merit to the extent outlined above, defendant's actual notice of the essential facts constituting the claim and opportunity to investigate the incident, and no indication that defendant would suffer substantial prejudice if movant is permitted to file a late claim (see Swart, 211 AD3d 881; see also Calzada v State of New York, 121 AD2d 988 [1st Dept 1986] [citing remedial purposes of amendments to CCA § 10[6]). Accordingly, it is hereby

ORDERED that movant's application for late claim relief is GRANTED, in part, as limited by the foregoing decision, and otherwise DENIED; and it is further

ORDERED that within sixty (60) days of the date of filing of this Decision and Order, movant shall file with the office of the Clerk of the Court a claim limited to the aforenoted allegations and as against only the State of New York as defendant; and within that same period, movant shall serve a copy of the claim upon the Office of the Attorney General personally or by certified mail, return receipt requested. In serving and filing the claim, movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules of the Court of Claims.

Albany, New York

April 5, 2023

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

Papers considered:

1. Notice of Motion;

2. Affirmation of Gregory M. La Sorsa, Esq. in Support of Motion;

3. Affidavit in Support of Leo M. Gustafson, and attached exhibits;

4. Affirmation of AAG J. Gardner Ryan, in Opposition to Motion;

5. Reply Affirmation of Gregory M. La Sorsa, Esq.

FOOTNOTES

1.   As defendant correctly notes, Fishkill Correctional Facility is not a proper defendant in the Court of Claims. Accordingly, the caption has been amended to reflect the only properly named defendant, the State of New York.

2.   The statements made in movant's affidavit regarding these details of the alleged prior written notice by other employees purport to be made "upon information and belief." Ordinarily, such statements have no probative value, inasmuch as they indicate that the affiant lacks the requisite personal knowledge of the facts asserted (see Powell v State of New York, 187 AD2d 848, 849 [3d Dept 1992]; Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991]). Here, however, the allegation of the State's actual knowledge in the proposed claim contains no such limitation. Further, movant's specification in his affidavit of the names of one of his co-workers on the project, as well as movant's project supervisor, is strongly indicative of personal knowledge on movant's part of the alleged prior notifications by those individuals. In any event, as noted above, defendant does not refute movant's allegations of prior notice of the allegedly defective condition, whether actual or constructive.

Zainab A. Chaudhry, J.