The following papers were read on the defendant's motion to dismiss the claim:
Notice of Motion, Affirmation in Support and Exhibits annexed; Affidavit in
Opposition. Filed papers: Claim, Answer.
The defendant moves on its Fourth Affirmative Defense to dismiss the claim on
the ground that it does not satisfy the requirements of Court of Claims Act
§11(b) because it fails to "include an adequate description of the location
of the incident alleged in the claim or the manner in which the incident
occurred." Answer, ¶6.
The claim alleges that the underlying incident occurred in Room 311 at Medgar
Evers College. No support has been provided for the assertion by the defendant
that the stated location of the incident, a particular room, is inadequate. The
issue presented, therefore, is whether the statement in the claim that "the
claimant was caused to trip and fall due to a dangerously- placed obstacle on
the floor" in that room, adequately sets forth the "nature" of the claim as
required by §11(b).
Previously, by Order filed April 11, 1999 (Claim No.97641, Motion No. M-58644,
Cross Motion No. CM-58732), the Court dismissed a claim arising out of the same
incident, for the reason that although it had been timely served upon the
defendant, it was not timely served upon the Attorney General. At the same
time, the Court denied the claimant's application for permission to file a late
claim (Court of Claims Act §10), noting that the claimant had not
demonstrated the appearance of merit, and that the phrase "dangerously placed
obstacle" was insufficiently specific to establish that the claim appeared to be
meritorious. Subsequently, by Order filed September 10, 1999 (Claim No. 97641,
Motion No. M-59801), upon renewal, the Court granted the claimant's application
to file a late claim based upon an additional submission which, the Court found,
was "sufficient to demonstrate the appearance of merit."
The defendant, in reliance upon the Court's initial determination which denied
the claimant's application to file a late claim, asserts that in failing to
include a more specific description of the "dangerously placed obstacle" in the
claim herein, the claimant has not satisfied the requirements of Court of Claims
But the conclusion that the allegation that the claimant's accident was caused
by a dangerously placed obstacle, without further description, was insufficient
to demonstrate the merit of the claim, for the purposes of Court of Claims Act
§10(6), does not necessarily compel the conclusion that the same allegation
insufficiently states the nature of the claim, for the purposes of Court of
Claims Act §11(b).
The specificity required by §11(b) is not the same as the detail required
in order to enable the Court to assess the appearance of merit in connection
with an application for permission to file a late
Although only one of the six factors
the Court must consider, the appearance of merit has consistently been regarded
as the most significant to be considered upon an application for permission to
file a late claim. McCarthy v New York State Canal Corporation
, 244 AD2d
57, lv denied
, 92 NY2d 815; Klingler v State of New York
, 213 AD2d
378; Savino v State of New York
, 199 AD2d 254; Prusack v State of New
, 117 AD2d 729. Section 11(b), on the other hand, does not require
that a claim be stated in sufficient detail to demonstrate its merit.
Rather, the requirements of §11(b) have consistently been applied in the
context of their purpose, which is to enable the defendant to investigate the
claim promptly and to ascertain its own liability. Sega v State of New
York, 246 AD2d 753, 755. "All elements of the claim need not be set out
with formalistic rigidity, but it must convey notice to the [defendant] to
enable it to properly investigate, defend, and/or settle the claim [citation
omitted] . . . ." Harper v State of New York, 34 AD2d 865.
"What is required is not absolute exactness, but simply a statement made with
sufficient definiteness to enable the [defendant] to be able to investigate the
claim promptly and to ascertain its liability under the circumstances. The
statement must be specific enough so as not to mislead, deceive or prejudice the
rights of the [defendant]. In short, substantial compliance with section 11 is
what is required [citations omitted]." Heisler v State of New York, 78
AD2d 767, at 767-768; see also, Sheils v State of New York, 249 AD2d 459;
Schneider v State of New York, 234 AD2d 357; Riefler v State of New
York, 228 AD2d 1000, 1001.
By the foregoing standard, the claim herein satisfies the requirements of Court
of Claims Act §11(b).
As stated by the
Court in Heisler v State of New York
at 768: "The manner
in which claimant was injured and how the defendant was negligent were stated or
can be reasonably inferred [citation omitted]."
In accordance with the foregoing, the defendant's motion is denied.