New York State Court of Claims

New York State Court of Claims

LESIE v. THE STATE OF NEW YORK, #2001-005-522, Claim No. 96451, Motion Nos. M-61088, CM-61512


The Defendant's motion to dismiss for the failure to recite a "serious injury" as required by CPLR 3016(g) is denied. The Claimant's cross-motion to amend the claim to allege the same is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Paul William Beltz, P.C.
By: Stephen R. Foley, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 13, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On June 13, 2001, the following papers, numbered 1 to 13, were read on motion by Defendant for dismissal of the claim and on cross-motion by Claimant for permission to amend claim:

1, 2, 3 Notice of Motion and Affirmations of Thomas G. Ramsay, Esq., dated January 19, 2000, and September 19, 2000, in support of Defendant's motion to dismiss the claim.

4, 5, 6 Notice of Cross-Motion and Affirmations of Stephen R. Foley, Esq., dated April 13, 2000 (with Exhibit Attached).

7, 8 Reply Affirmations of Thomas G. Ramsay, Esq., dated April 25, 2000 and January 23, 2001.

  1. Claimant's affidavit sworn to on July 1, 2000.
  1. Letter from Stephen R. Foley, Esq., date June 1, 2001.

11, 12, 13 Filed Papers: Claim, Amended Claim, Answer

Upon the foregoing papers and after hearing Thomas G. Ramsay, Esq., on the Defendant's behalf, and Stephen R. Foley, Esq., on Claimant's behalf, it is hereby ordered that the motion is denied and the cross-motion is granted.

In Motion No. M-61088, Defendant seeks to dismiss this claim, which relates to injuries allegedly sustained when Claimant fell from a recycling truck at the Albion Correctional Facility on or about April 27, 1997. The ground for dismissal is the purported failure to have alleged a "serious injury" as defined in §5102(d) Insurance Law, as required by CPLR 3016[g].

A brief recitation of the filings in this matter is instructive. On or about June 19, 1997, Claimant filed a claim, apparently pro se, dated June 10, 1997, captioned "Eveth Leslie 95-G-1615." Thereafter, a claim captioned "In the Matter of the Claim of EVETTE LESIE, also known as EVETH LESLIE," prepared by her attorney and verified July 10, 1997, was filed on July 18, 1997, and was designated by the Clerk as an amended claim. It appears that this claim was not denominated as an amended claim by the Claimant when it was served, but it is the document to which the Defendant State of New York filed its Answer on July 25, 1997. Accordingly, it is the Amended Claim, which superseded the pro se claim, that is the subject of the dismissal motion herein. Thus the cross-motion seeks to file a Second Amended Claim.

The Amended Claim alleges that "claimant was caused to sustain certain severe, permanent and painful injuries, as hereinafter set forth" (Paragraph 6) and "suffered certain severe, permanent and painful injuries, internal as well as external ... and will be incapacitated from performing her usual duties for a long period of time" (Paragraph 9). The injuries that purportedly were to be "hereinafter set forth" were not elaborated upon in the Amended Claim.

In opposing dismissal, Claimant seeks to amend (Cross-Motion No. CM-61512) by adding Paragraph 9, which alleges serious injuries pursuant to §5102(d) of the Insurance Law. Her proposed Amended Claim is more accurately denominated as a Second Amended Claim. Claimant references Paragraph 5 of her bill of particulars, in which she alleges that she sustained a "head injury, frequent headaches, low back pain, loss of hearing, loss of sense of smell and taste, ringing in the ears, facial paralysis, partial vision loss and memory loss." She also refers to Paragraph 23 of the bill of particulars:

As a result of the subject accident, the plaintiff (sic) sustained serious injuries pursuant to Section 5102(d) of the New York State Insurance Law, having sustained, among other things, significant disfigurement, permanent loss of use of a body function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; and/or a medically determined injury or impairment which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Paragraph 23 essentially repeats the language of Insurance Law §5102(d). While a copy of the verified bill of particulars has not been filed with the Clerk as required (22 NYCRR 206.5[c]), I have reviewed the copy appended to the cross-motion as Exhibit C. I am aware that it is signed by counsel and not directly by the Claimant herself, but there has been no challenge to the bill in that regard.

The Defendant opposes the proposed amendment, inter alia, alleging that the Claimant has failed to demonstrate that there is any showing of merit, and that the amendment is merely a boilerplate regurgitation of the Insurance Law. Moreover, the Defendant argues that the proposed amendment is intended to overcome a jurisdictional defect, which cannot be accomplished by amending the pleadings, citing Grande v State of New York, 160 Misc 2d 383. This is an interesting argument, as the case law holds that one cannot supply a missing jurisdictional requisite by amendment, and Claimant has failed to present any case law disputing the holding in Grande, id.

However, I am not persuaded that this is a missing jurisdictional element. Interestingly, in McDonald v State of New York, 176 Misc 2d 130, 132 (a case cited with approval by the Court of Appeals on other grounds in Riley v County of Broome, 95 NY2d 455, 467, and decided well after Grande, supra), the Court held that "[d]uring the trial, claimants' motion to amend the claim to allege that claimants sustained serious injuries as defined in Insurance Law §5102 (d) was granted (CPLR 3016 [g])" (also, see, Joyce v Winkler, 71 AD2d 28, 29, where the Fourth Department reversed dismissal of a complaint for the failure to have alleged serious injury.) I reject Defendant's argument that the imprecision of the pleading here is a jurisdictional failure akin to those discussed in Grande, supra, and see, Martin v State of New York (185 Misc 2d 799).

The operative statute is CPLR 3016(g), which states in relevant part that the complaint "shall state that the plaintiff has sustained a serious injury, as defined [by Insurance Law 5102{d}]." The practice commentaries by David D. Siegel (McKinney's Cons Laws of NY, Book 7B, CPLR C3016:10, at 72) observe that every such action should specifically plead the satisfaction of the injury standard, and notes that it should not be construed to "require any great specificity of pleading .... It should suffice ... to allege those things in just such conclusory terms" and further notes that "a coordinate 1974 amendment was made in CPLR 3043 (a)(6) to make specificity in these situations the burden of the bill of particulars." Indeed, Siegel suggests that the complaint should merely state that the no-fault threshold is passed, and "if it is passed, but the complaint omits to say so, or to say so properly, a mere amendment should suffice to correct it."

I have read the statutes and considered the commentaries, as well as the cases above, and will not elevate form over substance.

The particular question here does not prejudice the Defendant in any way, particularly as the Claimant was an inmate under the complete control and custody of the Defendant during the relevant period of time. Furthermore, whether it reviews the pro se claim which alleges that Claimant was unconscious from April 27 to May 15, 1997 (albeit signed but not verified), or the Amended Claim which alleges "severe, permanent and painful injuries," verified by Claimant, and the Bill of Particulars, which recites the §5102(d) definition, and the Claimant's July 1, 2000 affidavit in which she alleges, inter alia, that she has lost her sense of smell and lost vision in one of her eyes (assertions made more than four years after the accident which seem to allege, at a minimum, loss of use or significant limitation of the use of a bodily function), it appears to me that filtering intent of the no-fault insurance scheme is satisfied here. Accordingly, the State's motion to dismiss is denied.

I grant the Claimant's cross-motion to amend her claim to allege a serious injury, meeting the pleading threshold requirements of CPLR 3016(g). Accordingly, Claimant shall have sixty days from service of a file-stamped copy of this order to serve and file a verified Second Amended Claim, in accordance with the Court of Claims Act and rules. It of course remains the Claimant's sole responsibility to arrange for her return from deportation to Jamaica for such pretrial discovery and the trial herein as may be required.

July 13, 2001
Rochester, New York

Judge of the Court of Claims