New York State Court of Claims

New York State Court of Claims

PARTRIDGE v. THE STATE OF NEW YORK, THE NEW YORK STATE CANAL CORPORATION, and THE NEW YORK STATE THRUWAY AUTHORITY, #2001-013-001, Claim No. 90710, Motion No. M-62089


Synopsis



Case Information

UID:
2001-013-001
Claimant(s):
W. KENT PARTRIDGE, Individually and on Behalf of a Class of Persons Similarly Situated
Claimant short name:
PARTRIDGE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, THE NEW YORK STATE CANAL CORPORATION, and THE NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
90710
Motion number(s):
M-62089
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
HARTER, SECREST & EMERY, LLP
BY: A. PAUL BRITTON, ESQ. and KENNETH A. PAYMENT, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: ROGER B. WILLIAMS, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March , 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2001-013-004


Decision


On September 20, 2000, I reviewed the following papers on Claimants' motion for reconsideration and heard oral argument on August 23, 2000:

1. Notice of Motion


2. Affidavit of Carol H. Marzec dated July 25, 2000

3. Affirmation of Roger B. Williams, Esq., in Opposition dated April 21, 1999 [sic] and Annexed Exhibit

4. Reply Affidavit of Carol H. Marzec dated August 16, 2000 and Annexed Exhibits


5. Claimants' Memorandum of Law in Support of Motion for Reconsideration


6. Letter to Court from A. Paul Britton dated September 15, 2000

7. Defendant's Reply Affirmation in Opposition dated September 12, 2000 and Annexed Exhibits

8. Letter to Court from A. Paul Britton dated January 8, 2001

9. Filed Pleadings: Claim; Second Claim; Third Claim; Answer to Claim; Answer to Second Claim; Answer to Third Claim



Section 11(b) of the Court of Claims Act requires that every claim "shall state the time when and place where such claim arose." The questions I must resolve in this motion are (1) whether a claimant satisfies that requirement when he or she identifies the place where the claim arose using (a) a rural delivery route or (b) a geographical landmark; and (2) whether I can "save" claims where a proper address was provided in the notice of intention but not in the claim.

Claimants are landowners who allege that their property suffered flood damages in the springs of 1993, 1994 and 1995 because of Defendants' management of the New York State Barge Canal System. In a decision and order filed on June 15, 2000 (M-58210), I granted Defendants' motion to dismiss some of their claims on the basis that the affected Claimants did not correctly identify the location of their flood-damaged properties. Claimants ask me to reconsider those dismissals.

1. The Effect of the December 10 Stipulation

Before considering the application on the merits, I must determine how the parties' stipulation to certain facts should affect Claimants' current application. To assist me in resolving the original motion, the parties stipulated, among other things, that certain Claimants' "addresses as stated on the First Claim, Second Claim or Third Claim are different from the addresses at which property losses were sustained..." (see, Stipulation dated December 10, 1999, Paragraph 6 and Schedule B-2). I dismissed those Claimants, concluding that they had not identified the place where their claims arose as required by Court of Claims Act §11(b).

Some of the dismissed Claimants now assert that their names appeared on the list in error. Defendants strenuously object to restoring any of the dismissed claims but do not argue that the Stipulation forecloses Claimants' application. In these circumstances, the Stipulation should not prevent me from reconsidering the dismissals (see, Hirsch v Manzione, 130 AD2d 714, 714-715; Carrion v Metropolitan Transportation Auth., 92 AD2d 907; 105 NY Jur 2d, Trial, §268).

2. Whether Mailing Addresses Satisfy Court of Claims Act §11(a)


A common issue affects many of the moving Claimants whose names appeared in the

stipulation: whether a mailing address sufficiently identifies the place where their claims arose. Instead of providing a street address, these Claimants provided (1) a rural delivery route number, (2) a postal box number, (3) the name of a town, village or hamlet, and (4) a zip code. But they failed to furnish a street number or the name of the street where the property was located.[1]

In Claimants' reconsideration papers, Carol Marzec, a legal assistant who is intimately familiar with this case, averred that these mailing addresses are "highly specific" and, that each "does not refer to a mailbox in a post office, but rather to a numbered mailbox on the property itself" (see, e.g., July 25, 2000 Marzec Affidavit, ¶16). In most (but not all cases) she also asserted that "[t]here is no better or more specific address" (id.). Many of the properties, she explained, had no street numbers at the time the notices of intention and claims were served. Some are located on roads that are not named or that were named only recently (see, August 16, 2000 Marzec Affidavit, ¶9).

Defendants responded that the addresses do not satisfy the Court of Claims Act. They are useless to anyone but the United States Postal Service, Defendants argue, because they do not include the name of the road where the property might be found.

Section 11(a)'s requirements are jurisdictional; a failure to adhere to them renders a claim jurisdictionally defective (e.g., Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723; Martin v State of New York, 185 Misc 2d 799). The courts have employed a common sense approach in evaluating whether the requirements have been met. The inquiry has focused on whether the claim actually identified the location or provided a definite means to identify it. When a claim has asserted that a cause of action arose in an open area, the Court has found it to be inadequately pled if the location description was ambiguous (Schneider v State of New York, 234 AD2d 357 [picnic area adjacent to parking area, where there were multiple picnic areas and lots]; Riefler v State of New York, 228 AD2d 1000 ["a certain stairway" in a correctional facility]) or if it was vague or overly inclusive (e.g., Cobin v State of New York, 234 AD2d 498, appeal dismissed 90 NY2d 925 [on the boardwalk at Jones Beach]; Grande v State of New York, 160 Misc 2d 383, 386 [Route 25A in the Village of Brookville]; Sega v State of New York, 246 AD2d 753 [Route 7 West of the Village of Richmondville]; Harris v State of New York, Ct Cl, [Claim No. 99494, M-60178, CM-60326], Read, P.J.["on the East River bicycle/pedestrian path . . . somewhere in the 20's"]).

Section 11(a) calls for precision, but not necessarily exactness, and it sometimes may be satisfied when the claim furnishes a means for determining the location without expressly identifying it.

Cannon v State of New York (163 Misc 2d 623) is illustrative. The Claimant injured himself while working on a steam pipe valve at SUNY Stony Brook. He described the location as the university's main power plant. The State argued that the description was jurisdictionally defective "because the building is half the size of a football field and has more than 30 valves" (id., at 627). Judge Silverman disagreed:

Defendant is obligated to investigate, or attempt to investigate, the accident before it claims it cannot conduct an investigation.... An investigation of an accident arising out of work being performed for defendant in an enclosed building that is under the exclusive control of defendant entails speaking to the person responsible for the building or that person's agent. A notice of intention which provides a location specific enough to locate its own employee directly responsible for the building, satisfies the requirement of section 11 to set forth the place where the claim arose.


(Cannon v State of New York, supra, 163 Misc 2d at 627.)

It was important to Judge Silverman that the accident occurred in a State-owned building. But this one factor is not necessarily essential. Presiding Judge Read has made clear that the State has to conduct a pre-motion inquiry even when the claim arose on premises it did not own or control. The Claimant in Turpin v State of New York, (Ct Cl, June 8, 1999 [Claim No. 92485, Motion No. M-58816], Read, J.), alleged that he was injured in some unspecified way "in the premises of J-Cap, Queens Village Committee for Mental Health at the St. Albans facility located at 177-33 Baisley Blvd., St Albans, New York 11434," a facility operated by "an independent contractor subject to State licensure." Presiding Judge Read concluded that the claim "while notably vague," satisfied Section 11 because it "apprizes the State of . . . the precise street address where the accident took place as well as the name of the facility located there . . ." and because the State could ascertain the remaining pertinent information upon a reasonable investigation:

... [A] claim need only provide a basis for an investigation by the State which, with reasonable effort, will elicit information sufficient for the State to evaluate its liability and to prepare a defense. Here, the State's papers reveal that its investigation has led to information that claimant may have been engaged in a game of touch football in a grassy area adjacent to the J-CAP facility's building at the time he was allegedly injured.... The State's papers do not disclose whether the facility's administrator or employees were questioned to discover if they had any information relevant to the incident. The papers do not reveal whether additional discovery devices have pinpointed the area in which claimant is alleged to have fallen and whether any defects or traplike conditions existed there at the time of claimant's fall. In short, the claim suggests avenues of investigation and defendant has not established that it has explored those avenues, much less that a reasonable effort to investigate has proved futile. As a result, defendant's section 11(b) challenge to the sufficiency of the claim is unavailing.


Much like Judges Read and Silverman, I am bothered that Defendants may have made no inquiry before contending that the rural delivery addresses fell short of Section 11(b)'s requirements. It is not argued here that the addresses are ambiguous or vague -- just that they require the assistance of a third party to interpret them. Since there is no proof that the third party, the United States Postal Service, would be unwilling to provide such assistance,[2] I am reinstating the claims.

All but the claims of Gary and Linda Coffey related to property that adjoins the two waterways that are part of the class action -- Oneida Lake and Oneida River upstream from the Caughdenoy Dam (see , Note 1, supra, and Stipulation, Schedules C-1 and C-2). They are therefore added to the certified class (see, Decision and Order filed June 15, 2000, M-58210 & CM-58893, Appendix E). The Coffey's claim is added to the list of severed claims (Decision and Order filed June 15, 2000, M-58210 & CM-58893, Appendix F).[3]

3. Whether a Geographical Landmark Satisfies Section 11(a)


Like the Claimants described above, the Eno Point Campers Association failed to provide a street name and number for its flood-damaged property. The given address was "c/o Ronald D. Glasser, Cross Lake, Jordan, NY." The Association argues that its claim should be restored because Eno Point is a well known geographical feature in Jordan, New York.

I can conceive of situations in which identifying a notable landmark, for instance the Montauk Point Lighthouse, might satisfy Section 11. I can also conceive of cases where a landmark would fall short because it was known only locally or because it was so large that referring to it would not be sufficiently specific (e.g., the Jones Beach Boardwalk) (see, Cobin v State of New York, 234 AD2d 498, appeal dismissed 90 NY2d 925, supra). It is not clear where Eno Point falls on this spectrum. However, Claimants' submissions are sufficient to raise triable issues of material fact. I am therefore restoring the claim. Because Eno Point does not adjoin one the waterways that are part of the class action case (Oneida Lake or the Oneida River upstream of the Caughdenoy Dam), the Association's claim will be added to the list of "Persons Whose Claims Are Severed From the Class" (see, Stipulation, Schedule C-4; Decision and Order filed June 15, 2000, Appendix F).

4. Treating the Notice of Intention as a Claim


A third group of moving Claimants concededly failed to provide the correct location of their flood-damaged property in the claim. But, they urge me to reinstate their claims because their notices of intention sufficiently described the location.[4] They ask me to incorporate the address information from the notices of intention into the claim, and, to that limited extent, to treat their notices of intention as a claim.

Court of Claims Act §10(8)(a) addresses the circumstances in which a notice of intention may be treated as a claim:[5]

A claimant who timely serves and files a notice of intention but who fails to timely serve and file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice laws and rules; the notice of intention was timely served and filed, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.


One difficulty with treating the notice of intention as a claim is that the remedy, on its face, applies to claimants who "fail[ ] to timely serve and file a claim." Thus, Section 10(8) is plainly available to a claimant who (1) filed a claim but failed to serve it; (2) served a claim but failed to file it; (3) neither served nor filed a claim; or (4) filed and served the claim after the time limitations found in Court of Claims Act §10. But it is not apparent that Section 10(8) relief is available where, as in this case, Claimants timely served and filed a claim that happened to be jurisdictionally deficient. Recognizing this problem, Claimants urge me to reach back to the judicial precursor of Section 10(8), the so-called Chalmers doctrine, and to fashion a new remedy to aid them in their predicament (see, Chalmers & Son v State of New York, 271 AD 699, affd 297 NY 690).

It would be improvident for me to take that step in this case. Section 10(8) was intended to reign in the discretion historically exercised by Court of Claims judges under Chalmers and its progeny. Former Assemblyman Koppell introduced the Section 10(8) legislation to limit the time a party would have to request and receive leave for a notice of intention to be treated as a claim (see, July 25, 1993 letter from G. Oliver Koppell to Hon. Elizabeth D. Moore). Thus, this Court may not grant such an application unless "it is made before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules..." (Court of Claims Act §10[8]).

Whether they sound in trespass or de facto taking, Claimants' inverse condemnation claims are "actions to recover damages for an injury to property..." and must be commenced within three years of accrual (see, CPLR 214[4]; Ferran v Williams, 194 AD2d 962, 963; Sarnelli v City of New York, 256 AD2d 399, 400, appeal denied 93 NY2d 804; Greenman v City of Cortland, 141 AD2d 910, 911, cert denied 506 US 867). Because Claimants first made their request to treat their 1993-1995 notices of intention as claims in the year 2000, I conclude that it must be denied.

5. Special Cases


Claimants have also brought to my attention a number of individual dismissals that they would like me to reconsider. I deal with these below.

Mark and Mary Ann Dupre listed their address as 7688 Tuttle Rd., Bridgeport, New York in the first notice of intention and the first claim, but were not named as Claimants in the second claim (but see, Stipulation, Schedule A-3). In the third claim, they identified their flood-damaged property as 64 Shacksbush Road, Bernhard's Bay, New York. The parties stipulated that 7688 Tuttle Road was the correct address (see, Stipulation, Schedule B-1). I have jurisdiction over their claims because they timely identified the correct location of their properties in the first notice of intention and first claim.[6] I deem their reconsideration application to be a motion for leave to amend the third claim. I am granting that motion, correcting the address so that it now reads 7688 Tuttle Rd., Bridgeport, New York and restoring their 1993 and 1995 inverse condemnation claims and their 1994 negligence, gross negligence and inverse condemnation claims. Because the Tuttle Road property adjoins Oneida Lake, the Dupres are added to the certified class (see, Decision and Order filed June 15, 2000, Appendix E).

Kendall Stackhouse joined the case with the filing of the second claim and listed his address as 900 Beach Road, Brewerton, New York 13029. He gave the same address in the third claim. In the December 10 Stipulation, the parties agreed that the correct address of Mr. Stackhouse's damaged property was 9000 Beach Road. Ms. Marzec's affidavit also asserts that the correct address is 9000 Beach Road (see, July 25, 2000 Marzec Affidavit, ¶25). The misidentification of Mr. Stackhouse's address was obviously a typographical error, but the claims failed to give Defendants the requisite notice of the place where his claim arose (see, Court of Claims Act §11[b]). Claimants' motion to restore his claim is therefore denied.

George W. Stupp, Jr. Mr. Stupp's address in the first notice of intention and the first claim was listed as 761 Woodland Drive, West Monroe, New York. In the second and third claims the provided address was 26 Woodland Drive, West Monroe, New York. Mr. Stupp was listed in the Stipulation as one of the "Claimants Whose Addresses That Appeared On Claims Are Different From Damaged Property Addresses" (Stipulation, Schedule B-2). In the Stipulation, the parties agreed that the address of his flood-damaged property was "Route 13 Falls Blvd. (Parcel 2), Chittenango, New York." Claimants now assert that the 761 Woodland Drive and the 26 Woodland Drive addresses were both correct and explain that the street number of Mr. Stupp's property changed from 761 to 26 during the pendency of the action (see, Claimant's Memorandum of Law in Support of Motion for Reconsideration at 2-3). Defendants have not disputed that assertion. Accordingly, Mr. Stupp's claim for damages at 26 Woodland Drive (formerly 761 Woodland Drive) is hereby restored. Because that property adjoins Oneida Lake, that claim is added to the Certified Class (Decision and Order filed June 15, 2000, Appendix E).

Robert C. and Linda Tanner were not listed in the Stipulation as Claimants who provided correct or incorrect addresses (see, Stipulation, Schedules B-1 and B-2). Claimants now aver that the street address provided for the Tanners in the Third Notice of Intention and the three claims corresponds to the location of their flood-damaged property. Accordingly, the Tanners' claim is restored. Because their property adjoins Oneida Lake (see, Stipulation, Schedule C-1), they are added to the list of Members of the Certified Class (Decision and Order filed June 15, 2000, Appendix E).

The claim of "Cross Lake Park c/o Dean Cummins," appeared in the second and third claims, but only Dean Cummins was listed in the Stipulation. I dismissed Cross Lake Park (see, Decision and Order filed June 15, 2000, Appendix C). Claimants have now provided proof that Cross Lake Park's claim is distinct from Dean Cummins. Therefore, I am restoring it. Because the subject property adjoins the Seneca River (see, Stipulation, Schedule C-4), the claim is added to the list of Persons Whose Claims Are Severed From the Class (Decision and Order filed June 15, 2000, Appendix F). The separate claim of Dean Cummins, which was inadvertently included on the list of Members of the Certified Class (Decision and Order filed June 15, 2000, Appendix E), is deleted from that list and added to the list of Persons Whose Claims Are Severed From the Class (Decision and Order filed June 15, 2000, Appendix F).

Sam Anderson, Adeline DePerno, Mark Hudson and Josephine Townsend, and Patrick and Judith Wolf all own flood-damaged properties that front Oneida Lake (see, Stipulation, Schedule C-1). Their negligence claims were dismissed as untimely, but their inverse condemnation claims were not (see, Decision and Order filed June 15, 2000 at p. 15 and Appendix D.) Therefore, their names are hereby added to the list of Class Claimants (Decision and Order filed June 15, 2000, Appendix E).

Bill Barrett, d/b/a Fisherbay Marina and Richard Mooney own property that adjoins Oneida Lake or the Oneida River, upstream of the Caughdenoy Dam. Their names, which were omitted from the list of members of the certified class (Decision and Order filed June 15, 2000, Appendix E), are hereby added to that list.

Mimi Albro owns flood-damaged property that adjoins Oneida River downstream from the Caughdenoy Dam. Her claim was inadvertently omitted from the list of Persons Whose Claims Are Severed from the Class (Decision and Order filed June 15, 2000, Appendix F). It is hereby added to that list.

Ronald and Marylou (Mary Lou) Scott
, were incorrectly dismissed for failure to identify the location of their flood-damaged property (Decision and Order filed June 15, 2000, Appendix C). Their claim is restored (see, Stipulation, Schedules B-1 and B-2) and, because the subject property adjoins Oneida Lake (see, Stipulation, Schedule C-1), is added to the list of Members of the Certified Class (Decision and Order filed June 15, 2000, Appendix E).

Paul White and Horseshoe Island Pirate's Cove Marina, Inc. were inadvertently dismissed for failure to identify the location of the flood-damaged property. Because their flood- damaged properties are located downstream from the Caughdenoy Dam, their claims are added to the list of Persons Whose Claims Are Severed From the Class (Decision and Order filed June 15, 2000, Appendix F).

The parties are asked to amend their stipulation to reconcile it with the information they provided with this motion.

The parties are directed to amend their stipulation to reconcile it with the information they provided with this motion.


March , 2001
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims

CHANGES TO APPENDIX C
Claimants Whose Claims are Dismissed for Failing to

Identify the Location of Their Property Correctly


ADDED
:
None



DELETED
:
Chapman, Douglas S.

Coffey, Gary and Linda

Cross Lake Park, c/o Dean Cummins

Devan, Margaret and Richard

Eno Point Campers Association, c/o RonaldGassler

Fremac Marine, c/o Katherine M. D'Agata

Horseshoe Island Pirates Cove Marina, Inc.

Johnnies Pier 31, c/o John Hadyk

Rodgers (Rogers), Murray

Scott, Ronald and Marylou (Mary Lou)

Still, Jeffrey and Patricia

Stupp, George W. Jr.

Tanner, Robert C. and Linda

Vanderwerken, Gerald and Debbie

Webster, Lee and Dawn

White, Paul























CHANGES TO APPENDIX E
Members of the Certified Class


DELETED
:
Dean Cummins


ADDED
:
Anderson, Sam

Barrett, Bill, d/b/a Fisherbay Marine

Chapman, Douglas S.

DePerno, Adeline

Devan, Margaret and Richard

Dupre, Mark and Mary Ann

Fremac Marine

Johnnies Pier 31

Mooney, Richard

Rodgers (Rogers), Murray

Scott, Ronald and Marylou (Mary Lou)

Stupp, George W. Jr.

Tanner, Robert C. and Linda

Torsleff, David and Cindy

Townsend, Josephine and Mark Hudson

Vanderwerken, Gerald and Debbie

Webster, Lee and Dawn

Wolf, Patrick and Judith





















CHANGES TO APPENDIX F
Persons Whose Claims are Severed from the Class


DELETED
:
None



ADDED
:
Albro, Mimi

Coffey, Gary and Linda

Cross Lake Park, c/o Dean Cummins

Cummins, Dean

Eno Point Campers Association

Horseshoe Island Pirate's Cove Marina, Inc.

White, Paul


  1. [1]The Claimants who fall into this category are Douglas Chapman, Gary and Linda Coffey, Margaret and Richard Devan, Fremac Marine, Johnnies Pier 31, Murray Rodgers (Rogers), Jeffrey and Patricia Still, Gerald and Debbie Vanderwerken, and Lee and Dawn Webster. This part of my decision also applies to 1994 and 1995 inverse condemnation claims of David and Cindy Torsleff and to Mark Hudson and Josephine Townsend who provided the name of the road where their property was located and a box number.
  2. [2]The burden was not an onerous one. Though there were sixteen Claimants, there were only four post offices involved.
  3. [3]The severed claims now appear under the caption "Beacon Bay Marina, et al. vs. The State of New York, the New York State Canal Corporation and the New York State Thruway Authority (Claim No. 90710-A).
  4. [4]The Claimants affected by this part of my decision are Dennis and Jeannine Nolan, Walt and Donna Palmieri, Joseph P. Schramm, Richard and Barbara Mace, John P. Mehlek, Katherine Celestian, Robert and Irene DiFlorio, Carlton E. Larmer, Margaret Schillo, Charles and Susan M. Thompson, John C. and Philomena Parker, Michael A. and Mary K. Alden, Karin and Eric Marx and Amy Mura.
  5. [5]The notice of intention predates the amendments to the Court of Claims Act which abolished filing of notices of intention. Therefore, I do not have to consider the effect of those amendments upon Court of Claims Act §10[8] (see, Konviser v State of New York, 180 Misc 2d 174, 177; Muller v State of New York, 184 Misc 2d 500, 502).
  6. [6]The critical difference between the Dupres and the Claimants discussed in Section 4 above is that they provided a correct address in a claim (Cannon v State of New York, 163 Misc 2d 623, supra, at 626).