The following papers were read and considered on defendant's motion for an
order of dismissal: Notice of Motion to Dismiss, dated February 23, 2000 and
filed February 24, 2000; Affirmation in Support of Glenn C. King, Esq., AAG,
dated February 23, 2000, with annexed Notice of Intention to File Claim, dated
December 3, 1998 and stamped as received by the Office of the Attorney General
on December 9, 1998, and Exhibits 1-3; Verified Answer to Amended Claim, dated
September 21, 1999 and filed September 23, 1999; Amended Claim, dated August 10,
1999 and filed August 17, 1999, with annexed Exhibits 1-3; Verified Answer,
dated July 30, 1999 and filed August 3, 1999; and Claim, dated June 17, 1999 and
filed June 23, 1999. Claimant Stephen Moran ("claimant"), proceeding pro se,
commenced this claim by service on the Attorney-General of a Notice of
Intention to File a Claim, dated December 3 and received December 9, 1998. The
substantive portion of the notice of intention reads as follows:
On November 6, 1998, while working at his job assignment on the sanitation crew,
claimant sustained injuries to his back while a passenger in the back seat of a
State owned vehicle operated by his supervisor, C. O. Elliott, a corrections
officer employed by the defendant, State of New York. On three separate
occasions, while backing-up, C. O. Elliott caused said vehicle to impact into:
(1) a porch that was connected to a house located on facility grounds, at
approximately 12:50 p.m.; (2) a loading dock located at the rear of the mess
hall, at approximately 2:30 p.m.; and (3) into the side of the facility
recycling building, at approximately 2:40 p.m. (see attached drawings "1", "2",
& "3", respectively).
Elsewhere in the document, claimant listed the Hudson Correctional Facility
("Hudson") as his address.
A claim was filed on June 23, 1999; the State's answer was filed on August 3,
1999; and an amended claim was filed on August 17,
The amended claim contains a more
detailed version of the allegations set forth in the notice of intention and
includes, as the notice of intention does not, a statement that the events
occurred at Hudson. In addition, the amended claim sets forth a second cause
of action based on allegations that the medical treatment claimant received from
Hudson's health care professionals was negligent. This allegedly negligent
treatment (or negligent lack of treatment) purportedly occurred over a period of
time, from the date of the injury, November 6, 1998, through at least May 6,
1999, when claimant began to receive physical therapy.
Defendant State of New York ("defendant" or "the State") now moves for an order
dismissing the claim on the grounds that both causes of action are time-barred.
Specifically, defendant contends that (1) the notice of intention was fatally
defective for failure to state where the claim arose and thus did not preserve
claimant's right to file any claim arising from the November 1998 events; and
(2) even if the notice were not defective in this fashion, it contained no
allegations of negligent medical treatment and thus did not extend claimant's
time to file his medical malpractice claim. The motion is unopposed.
The purpose of a notice of intention is "to provide the State with fair and
timely notice by bringing the general nature of the claim to its attention"
(Schwartzberg v State of New York, 121 Misc 2d 1095, 1099-1100,
affd 98 AD2d 902; Williams v State of New York, 77 Misc 2d 396).
The notice of intention is not a pleading and therefore need not state all of
the elements of a cause of action or list items of damages (Bensen v State of
New York, 88 Misc 2d 1035; Barrett v State of New York, 85 Misc 2d
456), nor is it to be scrutinized under the standards applicable to a pleading
(Sega v State of New York, 246 AD2d 753). It must, however, contain some
meaningful reference to the defect or wrongful actions by State officials that
will allegedly give rise to liability to the claimant (Bonaparte v State of
New York, 175 AD2d 683). Because one of the primary purposes of a notice of
intention is to give prompt notice of an event and an opportunity to investigate
the facts to determine potential liability (Heisler v State of New York,
78 AD2d 767), it must identify "the place of occurrence with sufficient
specificity so as to enable the defendant to investigate the occurrence"
(Grande v State of New York, 160 Misc 2d 383).
First Cause of Action: Negligence in Operation of the Vehicle
Claimant's notice of intention sets forth allegations of negligent operation of
a State vehicle in sufficient detail to preserve that cause of action, but fails
to state where the purportedly negligent operation occurred. This failure,
according to defendant, causes the notice of intention to be jurisdictionally
defective and incapable of extending claimant's time to file his claim.
Section 11 (b) of the Court of Claims Act requires that both the notice of
intention and the claim set forth "the time when and the place where such claim
arose." As indicated above, the principal purpose of requiring the location
and time of the occurrence giving rise to the claim is to permit the State to
conduct a timely investigation; defendant is not required to look beyond the
initial pleading in order to investigate the incident or to ascertain
information that should have been provided in the claim (Grande v State of
New York, 160 Misc 2d 383). In addition, the fact that a prison inmate
mailed a claim or notice of intention while housed in a specific State
institution does not establish that the incident must have occurred there
(Colon v State of New York, Ct Cl, filed March 26, 1999, Bell, J., Claim
No. 99669, Motion No. M-59091).
In Colon, the notice of intention did not indicate the correctional
facility in which claimant was injured, and claimant's address was listed as
Clinton Correctional Facility Annex. In fact, the events giving rise to the
claim took place at Clinton Correctional Facility, which has buildings and yards
separate from the Annex. The notice of intention in Colon was defective
in other ways as well because there was "a total failure to indicate how the
claim arose." In the notice of intention, the claimant stated only that he
"broke his right ankle, in the North yard." In the subsequent claim, he alleged
that he fractured his ankle while playing softball in the north yard and that
the softball field was poorly maintained and had numerous "ditches and
The notice of intention in this case is much more informative. It contains a
detailed description of the locations within the correctional institution where
the alleged collisions occurred, the date and specific times that each collision
occurred, fairly clear maps showing the buildings and the path of the vehicle,
the nature of the work being performed at the time, and the name of the officer
who was allegedly driving the State's own vehicle. Moreover, there could be no
doubt or confusion about the theory of liability. Finally, the only facility
referred to in the notice of intention, filed only one month after the events
described, was in fact the place where claimant asserts that the alleged
collisions occurred. In the Court's view, claimant's failure to state
expressly that the claim arose at Hudson was not a fatal jurisdictional
defect in view of these circumstances.
Second Cause of Action: Medical Malpractice
The State correctly argues that claimant's notice of intention contains no
reference to medical treatment or non-treatment. As a result, this notice did
not extend claimant's time to assert his second cause of action for medical
malpractice from ninety days to two years (see, Court of Claims Act
§ 10 ). If claimant wishes to pursue his cause of action for medical
malpractice, he must either move for leave to reargue or renew pursuant to CPLR
2221 to establish a date of accrual within ninety days of a properly filed and
served claim (see, CPLR 214-a; McDermott v Torre, 56 NY2d 399;
Ogle v State, 142 AD2d 37); or move pursuant to Court of Claims Act
§ 10 (6) for permission to file a late claim.
Based on the foregoing, the Court denies defendant's motion to dismiss the
first cause of action; the Court grants defendant's motion to dismiss the second
cause of action.