Caro v Ibrahim
Annotate this CaseDecided on September 12, 2016
Court of Claims
Leonard Caro, Claimant,
against
Khalil Ibrahim, The City University of New York, Lehman College and the State of New York, Defendants.
xxxx
For Claimant:
Peña & Kahn, PLLC
By: Jeffrey J. Schietzelt, Esq.
For Defendants:
Eric T. Schneiderman, Attorney General
By: Lawrence E. Kozar, AAG
For Defendants Lehman College and The City University of New York:
Smith Mazure Director Wilkins Young & Yagerman, P.C.
By: Howard J. Snyder, Esq.
Alan C. Marin, J.
Leonard Caro moves here for permission to file a late claim under section 10 (6) of the Court of Claims Act (the "Act"), which is opposed by defendants City University of New York (Lehman College) and the State of New York. The cause of action arose when Mr. Caro, a pedestrian, was struck by a vehicle in front of the Performing Arts Building on the campus of Lehman College.[FN1] Mr. Caro's accident occurred in the afternoon of January 14, 2016, and the driver was an employee of Lehman.
Jurisdiction and the Appearance of Merit
The State of New York and the City University of New York are separate entities, and the [*2]latter is the proper defendant in a personal injury suit for money damages based on the act of an employee or agent of a senior college of City University. See Deremer v State of New York and the City University of New York, UID No. 2016-016-031 [Ct Cl, Marin, J, May 16, 2016]. Moreover, this Court does not have jurisdiction over named individuals (section 9 of the Act). Therefore, Caro's motion for a late claim can obtain only against the City University, and references that follow to "defendant" in the singular will refer to Lehman College of the City University of New York.
The Court, in deciding a late claim motion, must consider six factors, although the presence or absence of any one is not decisive:[FN2] whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) the delay was excusable; (5) claimant has any other available remedy; and (6) the claim appears to be meritorious.
It is appropriate to begin with the appearance-of-merit factor, which will lead to the potential jurisdictional issues: "To be meritorious, a claim must not be patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists (citations omitted)" (Sands v State of New York, 49 AD3d 444 [1st Dept 2008]).
In the Sands case, the "legally defective" language was part of its analysis of one of the six factors for a late claim, but it is well settled that it would be futile to grant an application under section 10 (6) if the proposed claim lacks a basis in law (Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
Mr. Caro's claim would lack a basis in law if he cannot show either that the driver was acting within the course of his employment, or that Lehman College can be held responsible for the construction work that claimant asserts caused his accident.
As for the first item, although it is undisputed that driver Khalil Ibrahim was a Lehman College employee, defendant's contention that he was not acting in the course of his employment[FN3] has gone unchallenged. In addition, the police report lists the vehicle as registered to Mr. Ibrahim, apparently at his home address (Affirm Sup, exh 2).
The accident occurred on the Paul Avenue "circle," a curved spur of pavement that branches off and re-connects with Paul Avenue (Affirm Sup, exh 4, the aerial view photos). According to Mr. Caro, while crossing the road, he was "struck by a motor vehicle . . . as I was bending over to pick up some pamphlets that were on the ground" (id., Caro Affid, para 3). The aerial view photos in claimant's papers show that the curve of the circle is pronounced and contains a mark at the accident site slightly before Paul Avenue. Caro was not at an intersection or crosswalk; he described the accident site as the "roadway . . . accessible through Gate 8 at the intersection of 250 West Bedford and Park Avenue" (id., Caro Affid, para 2).
In any event, a driver must be alert to a pedestrian wherever he is, and the pedestrian must use due care. Thus 2:75 of the Pattern Jury Instructions provides, in relevant part, that both motorist and pedestrian are:
"[U]nder a duty to use that degree of care that a reasonably prudent person would have used under the same circumstances. [The driver] was required to keep a reasonably careful look out for pedestrians, to see what was there to be seen . . . and to operate the car with reasonable care to avoid hitting any pedestrian on the roadway." Before crossing the road, and while crossing the road, [the pedestrian] was required to look with care for oncoming traffic to avoid placing [him or herself] in a position of danger and to see what was there to be seen."As to whether a driver on the circle would have had a clear line of sight, Nicholas Bellizzi, claimant's expert engineer, explained:
"The pre-impact path of the car that struck Mr. Caro was rounding a left hand curve that began in a South Westerly direction and completed in South Easterly direction at the time of impact. As the vehicle approached the point of impact, there was construction fencing along the left side of the road beginning at the edge of the curb.""The aforementioned construction fencing created a visual obstruction, impediment, and impairment to the clear line of site of any motorist in a vehicle rounding said turn and the point of impact." [Affirm Sup, Expert Affid, paras 9 and 10].There is sufficient information here on the fencing (and its effect on a driver) for negligence and causation to go to the trier of fact. There remains the jurisdictional question whether such negligence can be imputed to the college - - the fence was installed by a general contractor, A.K.S International Inc. On that issue: "One of a number of settled exceptions to the rule exempting a property owner from liability for the negligence of its independent contractor is a situation where the contractor's negligence causes a dangerous condition on a sidewalk or public highway . . ." (Rothstein v State of New York, 284 AD2d 130, 131 [1st Dept 2001]).
The Court concludes that it has jurisdiction over Mr. Caro's claim against the City University, and that such claim satisfies the Sands standard for the appearance of merit.
The Remaining Factors of Section 10 (6)
The first three factors, notice, opportunity to investigate and prejudice, are closely related and can be considered together.[FN4] Service on the Attorney General's office was made 8 days after the 90-day period required by section 10 (3) of the Act. In a late claim application necessitated because service had been one day late, this Court noted that while section 10 (3) requires strict adherence, "there is an argument that for purposes of section 10 (6), if 90 days is sufficient notice [for section 10 (3)], then one day later may be reasonably sufficient" Tartaglione v State of New York, 51 Misc 3d 1220 (A) (2016).
As for opportunity to investigate and prejudice, police accident and college incident reports were prepared (id., exhs 2 and 3). As a project performed pursuant to contract, with on-site employees and supervisors (typically tracked with daily logs), sufficient information can be discoverable with respect to the relevant conditions on January 14, 2016. In sum, Caro satisfies the factors of notice, opportunity to investigate and prejudice.
Claimant fails to sustain a showing on the factors covering an acceptable excuse and the availability of an alternate remedy. Law office error is not excusable under section 10 (6), which generally requires some kind of incapacitating illness (Goldstein v State of New York, 75 AD2d 613, 614 [2d Dept 1980], and Conroy v State of New York, 192 Misc 2d 71 [Ct Cl 2002]). Finally, redress is available elsewhere: claimant has brought suit against the driver and general contractor in Supreme Court, Bronx County (City Univ Affirm Opp, exh A).
In view of the foregoing, and having considered the statutory factors together with the submissions of the parties,[FN5] IT IS ORDERED that motion No. M-88625 is granted against the City University of New York, and denied against the State of New York and Khalil Ibrahim.[FN6] Within sixty (60) days of the filing of this Decision and Order, claimant shall serve and file a verified claim in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof.
New York, New York
September 12, 2016
ALAN C. MARIN
Acting Judge of the Court of Claims Footnotes
Footnote 1: Jurisdiction for a personal injury lawsuit involving Lehman College, a senior college of the City University of New York, lies in the Court of Claims (Education Law § 6224 [4]).
Footnote 2: See Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
Footnote 3: See, for example, Pinto v Tenenbaum, 105 AD3d 930 (2d Dept 2013); Schilt v New York City Transit Authority, 304 AD2d 189 (1st Dept 2003).
Footnote 4: Brewer v State of New York, 176 Misc 2d 337 (Ct Cl 1998).
Footnote 5: The following were reviewed: On behalf of Leonard Caro - - a Notice of Motion, Affirmation in Support (with exhibits 1 through 9), and a Reply Affirmation. On behalf of Lehman College and the City University of New York, an Affirmation in Opposition (with exhibits A through C). On behalf of the State of New York, an Affirmation in Opposition.
Footnote 6: The claim against Lehman College is subsumed within the one against the City University of New York.
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