New York State Court of Claims

New York State Court of Claims

ALJUKIC v. STATE OF NEW YORK, #2000-018-003, Claim No. 101224, Motion No. M-60706


Synopsis


Defendant's motion to dismiss is denied. Defendant alleged that claimant failed to specifically identify the location where the claim arose as required by Court of Claims Act §11(b). The Court found the description adequate.

Case Information

UID:
2000-018-003
Claimant(s):
SEJAD ALJUKIC
Claimant short name:
ALJUKIC
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101224
Motion number(s):
M-60706
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
F. CHRISTOPHER GIRUZZI, ESQUIRE
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
of the State of New York
JOEL L. MARMELSTEIN, ESQUIRE
Assistant Attorney Generalof counsel
Third-party defendant's attorney:

Signature date:
April 5, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following documents were reviewed by the Court on this motion:


Notice of Motion dated November 1, 1999 ................................................1


Affirmation of Joel L. Marmelstein, Esquire,

Assistant Attorney General, in support with attached exhibits ................................2


Affirmation of F. Christopher Giruzzi, Esquire, in opposition

with attached exhibits.................................................................................................3


Defendant moves for dismissal of the claim pursuant to CPLR 3211 (a) (8) for lack of jurisdiction, based upon claimant's failure to specifically identify the location where the claim arose as required by Court of Claims Act §11(b). The Court heard oral argument from counsel on February 16, 2000.

On April 7, 1999, claimant served a notice of intention upon the attorney general's office
alleging that:

The claim arose on or about Saturday, January 16, 1999

at approximately 12:15 a.m. on New York State route

twelve (12) in the City of Utica, County of Oneida and

State of New York in the vicinity of Burstone (sic) Road.


The notice of intention further provided that the nature of the claim was the alleged negligence by the State in its failure to properly maintain and operate its snowplows by allowing its snowplows to create a dangerous condition of snow build-up on a bridge embankment and allowing such condition to remain causing injury to claimant. The claim served upon the attorney general on October 12, 1999, states:
The nature of the claim is that New York State created a

dangerous condition upon a bridge in the State of New York,

County of Oneida and City of Utica along State Route 12 at

the Northbound French Road entrance, by depositing snow

and failing to remove snow all in a negligent manner.


In its verified answer, defendant asserts the following second affirmative defense:

The Court lacks personal and subject matter jurisdiction to

hear and/or determine the Claim by reason of the failure to

serve a Claim within ninety (90) days after the accrual of

the cause of action, if any, as required by Section 10 of the

Court of Claims Act. The Notice of Intention to File a Claim

was a nullity due to the fact that it did not properly state the

location of the incident. Service of the Claim on October 12,

1999 was untimely.


By this motion, defendant alleges that the claim was untimely because the notice of intention fails to meet the requirements of Court of Claims Act §11(b) in that it does not contain a sufficiently detailed description of the place where the claim arose. Further, defendant claims the differing reference points to the location of the accident (Burrstone Road in the notice of intention and French Road in the claim) are contradictory and confusing. Defendant asserts, based upon maps attached to the moving papers (Exhibits D and E), that the difference in distance between the entrance to Route 12 from French Road and the exit ramp to Burrstone Road is approximately one mile. This one mile stretch, as the argument goes, is not particular enough to advise the State of the actual site of the accident.

Claimant, in response, asserts that the description of the location of the accident in the notice of intention adequately apprised the State of the site and in fact led the State to conduct an investigation which included obtaining a copy of the police report, speaking with at least one witness and ultimately arriving at a determination of liability. Claimant goes on to argue that the description in the notice of intention of the location as the "vicinity of Burstone [sic] Road" is the same reference made to the accident site in the police and fire department reports. (See claimant's Exhibits B and D.)

Claimant attaches to its opposing papers as Exhibit A, a copy of a letter from Greg Iberger of Sedgwick, the insurance adjuster for the State of New York, to claimant's attorneys. In the letter Mr. Iberger advises that "based on our investigation into this matter it was our position that the State was not liable for any damages your client may have suffered...."

Court of Claims Act §11(b) provides that:

The claim shall state the time when and place where

such claim arose, the nature of same, and the items

of damage or injuries claimed to have been sustained

and the total sum claimed....[t]he notice of intention

to file a claim shall set forth the same matters except

that the items of damage or injuries and the sum

claimed need not be stated...


The standard for Court of Claims Act §11(b) specificity in a notice of intention and claim is set forth in Heisler v State of New York, 78 AD2d 767 in which the Fourth Department said:
What is required is not absolute exactness, but simply

a statement made with sufficient definiteness to enable

the State 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 State.


The State's position that the notice of intention and claim lack the requisite specificity because the two cross street references were misleading must fail. At the time claimant served his notice of intention, the only reference to the accident site was in the vicinity of Burrstone Road. With this initial description, it is clear that an investigation by the State insurance adjuster was conducted. In fact, by May 14, 1999, five months before the claim referencing French Road was filed, the investigation was completed and the adjuster determined that the State was not liable. (See Claimant's Exhibit A.) This is a very different situation than in the case of Riefler v State of New York (228 AD2d 1000) relied upon by defendant. In Riefler, claimant filed a notice of intention alleging injuries caused by orange juice on a unspecified stairwell, and then two days later filed a claim alleging the fall was caused by liquid soap on an unspecified floor area, the Court held that such vague and contradictory descriptions of the accident scenes in claimant's initial submissions made it impossible for the State to determine the situs of claimant's fall.

The Court finds that the notice of intention has sufficiently informed the State of where and how it is alleged the accident occurred to allow the State to conduct a meaningful investigation. Therefore the notice of intention complies with Court of Claims Act §11(b) and the claim is timely. (Cf., Turpin v State of New York, Ct. of Cl., filed June 8, 1999, Read, P.J., Claim No. 92485, Motion No. M-58816; and Smith v State of New York, Ct. of Cl., filed October 26, 1998, Read, P.J., Claim No. 94568, Motion No. M-57465.)

Defendant's motion to dismiss is DENIED.



April 5, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims