New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2001-013-032, Claim No. 103513, Motion Nos. M-63467, CM-63604


Claimants' notice of intention did not adequately describe either the location of the incident or the nature of the cause of action, and thus did not preserve their right to file a claim. Claimants' motion for permission to file a late claim is denied; an expert's affidavit is required to establish the merit of a claim based on alleged negligence in the design and construction of a seawall.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 31, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Oral argument was heard on August 15, 2001, and the following papers were read on Defendant's motion for an order of dismissal and on Claimants' cross-motion to amend the notice of intention and notice of claim or, alternatively, for permission to file an untimely claim:
1. Notice of Motion and Supporting Affirmation of James L. Gelormini, Esq. ("Gelormini Affirmation"), with Annexed Exhibits

2. Defendant's Memorandum of Law ("Defendant's Memorandum of Law")

3. Notice of Cross-Motion and Supporting Affidavit of Joseph R. Bergen, Esq. ("Bergen Affidavit"), with Annexed Exhibits

4. Claimants' Memorandum of Law in Support of Cross-Motion (Claimants' Memorandum of Law")

5. Affirmation in Opposition of James L. Gelormini, Esq. ("Gelormini Affirmation in Opposition") and Memorandum of Law ("Defendant's Memorandum of Law in Opposition")

6. Reply Affidavit of Joseph R. Bergen, Esq. ("Bergen Reply Affidavit") with Reply Memorandum of Law in Support of Cross-Motion ("Claimants' Reply Memorandum of Law")

7. Letter of James L. Gelormini, Esq. dated August 20, 2001 ("Gelormini Letter Reply")

8. Letter of Joseph R. Bergen, Esq., dated August 21, 2001 ("Bergen Letter Reply")

9. Filed Papers: Claim; Answer

The single substantive allegation contained in Claimants' notice of intention reads as follows:
The claim herein arose on June 26, 2000, at approximately 7:00 P.M. at Hamlin Beach State Park. The claim arises out of the negligence of the New York State Department of Parks and the State of New York in the maintenance, construction, oversight and management of the Hamlin Beach State Park, which negligence created a trap upon the park premises which caused personal injury to GLORIA ALLEN....

The claim, which was given Claim No. 103513, contains an identical statement and does not add any more information about the facts underlying the cause of action.

1. Defendant's Motion

Defendant has moved for an order of dismissal on the ground that neither the notice of intention nor the claim contain an adequate description of the place where the claim arose or of the nature of the claim (Court of Claims Act §11[b]).[1] In support of this motion, Defendant has submitted the affidavit of James Slusarczyk, Park Manager of Hamlin Beach State Park (Gelormini Affirmation - Exhibit 3), who states that the park covers slightly over 1,000 acres of land, has approximately 1.5 to 2 miles of frontage on Lake Ontario, and contains a 264-site camping area. There are also five major picnic areas with shelters and approximately 750 picnic tables.

In this case, it is the adequacy of the notice of intention that is most critical. Even if the claim itself is inadequately pled,[2] a timely and sufficient notice of intention would preserve Claimants' right to file an appropriate claim at any time within two years after the claim accrued, i.e., until June 2002 (see, Court of Claims Act §10[3] and §11[a]).

The purpose of a notice of intention is to give the State prompt notice of an occurrence and an opportunity to investigate the facts to determine potential liability (Heisler v State of New York, 78 AD2d 767), and consequently, it must identify the location of the accident sufficiently to enable the Defendant to conduct a meaningful investigation (Grande v State of New York, 160 Misc 2d 383). It is true that 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), and it is not to be scrutinized under the standards applicable to a pleading (Sega v State of New York, 246 AD2d 753). Still, to achieve its central purpose, the document must apprise the State of the general nature of the claim; contain some meaningful reference to the factual basis of the claim so as to permit investigation; and identify the defect or wrongful actions by State officials that will allegedly give rise to liability (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).

In the instant case, the information contained in the notice of intention was not sufficient to permit the State to conduct any sort of meaningful investigation. It identifies only the date and time of day that claimant Gloria Allen was injured and the type of injury she suffered, but it provides no identifying information about the precise location of the incident, the events that led to her injury, or the nature of the alleged defect that, it is alleged, constituted a "trap." The notice of intention, on its face, is entirely insufficient (see, e.g., Sheils v State of New York, 249 AD2d 459 [indication that an accident occurred on a driveway "located somewhere on a property with a 1,000-foot frontage on the roadway" was insufficient]; Sega v State of New York, 246 AD2d 753, supra ["Route 7 West of the Village of Richmondville, in the Town of Richmondville, County of Schoharie" was not an adequate description of the place where the claim accrued]; Schneider v State of New York, 234 AD2d 357 [statement that an accident occurred "in the picnic area adjacent to the parking area" of a State park was not adequate where a map of the park showed "a number of picnic areas located adjacent to parking lots at various locations scattered throughout the park"]).

A number of decisions have pointed out that the need for specific information identifying the location of the incident that gave rise to the claim is particularly important when the injury occurred on a roadway or in a park that is open to the public, as opposed to within a contained building or space that is in the exclusive control the Defendant.
An accident in a public area cannot be investigated without a specific location. Even when a location is specified, the condition must be described so an investigator has an indication of what to look for. An open, public area requires greater specificity because the defendant has no ability to ascertain what occurred by simply going to a designated place.
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.

(Cannon v State of New York, 163 Misc 2d 623, 627.) There is also less need for specificity where the injury is alleged to have occurred as a result of some affirmative acts of State employees, making it possible to readily identify and interview the relevant individual whose actions are alleged to have caused the harm (Arquette v State of New York, Ct Cl, Sept. 20, 2001 [Claim No. 102374, Motion Nos. M-63135, CM-63219], Patti, J. [MacLaw No. 2001-013-017][3] [Claimant injured by cable strung across a pathway by State workers].

Counsel for Claimants maintains, however, that in this instance any defect in the notice of intention's description of the incident is overcome by the fact that park officials were made immediately aware of Claimant's injury and, within approximately ten minutes, commenced an investigation of the facts surrounding the incident (Bergen Affidavit, ¶¶9, 10; Bergen Affidavit - Exhibit D [Affidavit of Gloria Allen]; Bergen Affidavit - Exhibit E [Incident Report]). The park officer's narrative contained in the Incident Report, dated June 26, 2000, was as follows (with complete words substituted for abbreviations):
Complainant was walking with her husband... along the edge of the stone break-wall, beach front, area #1. As complainant was walking along the edge of the rock line, the sand broke-way to an open hole. Complainant's right leg went into the hole. Complainant was helped from the hole by her husband.... The hole measured 10" wide and 2' deep. Complainant suffered a suspected broken ankle and was transported by a family member to Park Ridge Hospital. See photos (2). *Incident took place, 100' west of the sidewalk, leading to the area 1 pier. No alcohol involvement suspected.

Certainly this account provides ample identification of the location of the incident and sufficient indiction of the nature of the alleged "trap." The question, therefore, is whether information available to the State but not actually contained in the notice of intention can, in effect, "cure" the inadequacy of that document's content.

In Grande v State of New York (160 Misc 2d 383, supra), the claim failed to describe the location where a tree fell on an automobile with any particularity, although it did make reference to the town in which the accident occurred. The claimant in that action had promptly filed a form with a State agency that correctly identified the accident site, and it was implied in the decision that a review of agency records for the properly identified town would have located the completed form. Former Judge Leonard Silverman held, however, that "[t]he defendant is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act §11" (id. at 386; accord, Cobin v State of New York, 234 AD2d 498, supra; Wheeler v State of New York, Ct Cl, June 15, 2001 [Claim No. 103821, Motion No. M-63282], Collins , J. [MacLaw No. 2001-015-159]); Raphael v State of New York, Ct Cl, Jan. 4, 2001 [Claim No. 102797, Motion Nos. M-62212, CM-62513] Read, P.J. [MacLaw No. 2001-001-083]).

Research has disclosed only one decision that appears to hold to the contrary in a roughly analogous situation. In Lufker v State of New York (239 AD2d 565), the notice of intention contained an inadequate description of the location of an accident but, nevertheless, the Second Department held that that document could be deemed a claim (Court of Claims Act §10[8]) because an incident report completed by SUNY Campus Police shortly after the incident provided timely notice of the precise location. Few of the underlying facts were given in the decision, but it is evident that the incident occurred on the grounds of a State University Campus. Consequently, the situation presented there may be akin to those in which an injury occurs in a building or some other precise location within the exclusive control of the State or arises from affirmative actions of State employees (see discussion, infra). In other words, it may have been so easy for the State officials to identify the appropriate State employee or record and, thus, obtain accurate information about the incident that it would be unreasonable to bar the lawsuit because the wording of the claim was, on its face, insufficient. My belief that this is the correct analysis of Lufker is supported by the nearly contemporaneous ruling, also by the Second Department, that a claim asserting the injured party fell "on the boardwalk at Jones Beach, County of Nassau, State of New York, in the East Quarter Circle, or its vicinity" was insufficient and that the State was not required to go beyond the language of the notice of intention to investigate the matter (Corbin v State of New York, 234 AD2d 498, supra, citing Grande v State of New York, 160 Misc 2d 383, supra).

Consequently, I find that Claimants' notice of intention does not contain enough information to identify either the location of the incident or the nature of the claim as to permit reasonable investigation. As a general proposition, the State is not required to go beyond the statements contained in that document in order to ascertain information that Claimant should have provided. While there may be some limited exceptions to this general rule, the situation presented here is not one in which the nature of the setting or the facts provided about the incident itself make it immediately apparent which State official or agency would have any relevant records. Without a timely, adequate notice of intention, Claimants have not preserved their right to commence an action against the State and, consequently, Claim No. 103513 must be dismissed.

2. Claimants' Cross-Motion
Claimants have cross-moved for permission to file a late claim.[4] This cross-motion was brought approximately a year after the proposed claim arose, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214). In determining a motion for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the Claimant has another available remedy. The Court, in the exercise of its discretion, balances the several factors, and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimants did not fail to timely initiate an action in this Court but, rather, the action that was commenced by a timely notice of intention was based on documents that contained insufficient information to satisfy the requirements of Court of Claims Act §11(b).

Claimants assert that the State had notice of the essential facts constituting the claim because of the prompt investigation conducted by Park officials and the timely notice of intention. This raises -- for similar reasons -- the concerns discussed above: whether the State was aware that it had a potential lawsuit on its hands and whether it was placed in a position to investigate that possibility. Without such awareness, its opportunity to investigate the circumstances underlying the claim are often hampered, with prejudice inevitably resulting.

For the reasons discussed above, Claimants' notice of intention cannot be viewed as providing the necessary notice; it gave notice only of the Claimants' names, the time of the accident, the nature of Gloria Allen's physical injury, and the fact that the injury occurred somewhere within the large State park. Nor can it be assumed the State has actual knowledge of the facts merely because it owns and maintains a certain facility (Turner v State of New York, 40 AD2d 923). Rather, it must be established that notice was provided, in some fashion, "to the State body or officer responsible for the investigation and litigation of the claim" (Andriola v State of New York, 53 AD2d 966, 968). Certain types of occurrences will automatically be investigated for other reasons, such as security concerns, and certain types of occurrences so typically lead to a lawsuit that they are invariably reported to higher-ups, which may serve to put the State on notice of a potential lawsuit (Espinal v State of New York, 159 Misc 2d 1051 [inmate assault inflicting serious injuries]; Carmen v State of New York, 49 AD2d 965 [workman seriously injured in fall at the Empire State Plaza]). In addition, proof that a report was, in fact, given consideration by supervisory-level employees who would be charged with evaluating potential liability can also establish that there was sufficient notice (Walter v State of New York, 235 AD2d 623 [project manager was given immediate notice of and initial report about a workplace accident inside a State office building]; Avila v State of New York, 131 Misc 2d 449 [information about a fall inside a State office building, caused by a leaking air conditioner, reached the supervisory level]). In the instant claim, the location of the accident can only be guessed at; the nature of the incident -- someone falling on an irregular beach -- is not so unusual or unique as to automatically invite concern about a lawsuit; and there is no proof that the incident report was transmitted to supervisory personnel. Claimants have failed to establish, therefore, that the State had the type of notice that would support their motion for a late claim.

On the other hand, it is evident that some preliminary investigation was made, which would serve to minimize the prejudice arising from lack of notice. In addition, it appears that if Claimants have a legal remedy against anyone, it must be against the State.

In opposing the motion for permission to late file, Defendant objects most strenuously that the proposed claim does not have sufficient merit to warrant the extraordinary relief being requested. The threshold for establishing that a proposed claim has the appearance of merit is relatively low. Claimants must establish only that the contemplated action is not patently groundless, frivolous, or legally defective and that there is "reasonable cause to believe that a valid cause of action exists" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Permitting a defective claim to be filed would be meaningless and futile, even if the other factors in Court of Claims Act §10(6) supported granting the motion (Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967).

As might be expected, the proposed claim (Bergen Affidavit, Exhibit H) contains ample information about the location and cause of Claimant's injury. It describes the specific nature of the defect in the following manner:
The incident occurred at the park approximately 100 feet west of the area 1 pier, on the land side of the break-wall directly adjacent to the breakwall, and the condition claimed to exist was a trap in the form of a weak area of beach which eroded beneath the surface, leaving a thin and fragile surface layer of sand which had the appearance of solid beach, but when stepped upon, caved in to form a hole 2 feet deep and 10 inches wide....

(Proposed Claim, Exhibit H, ¶3.) It is alleged that the State's negligence created this trap "by the design and construction of the pier and break-wall" (id.), and that the State was also negligent in failing to warn of the trap and the erosion conditions. In Claimants' Verified Bill of Particulars (Bergen Affidavit, Exhibit C), some additional information is provided:
Defendant negligently created and failed to warn of a trap. Said trap consisted of a large rock breakwall covered with sand. The sand, however, filtered through and between the rocks, leaving thin layers of sand covering deep sinkholes between and among the rocks.

Defendant contends that in order to be late filed, a proposed claim of this nature must be supported by an expert's affidavit, particularly because the State enjoys qualified immunity from damages arising from its design and construction of public improvements.

In order to establish that a proposed claim has the appearance of legal merit, there must be factual allegations that (1) identify the particular act or omission on which the State's liability is premised and (2) establish the causal connection between that alleged wrong and the Claimant's injury (see generally, Matter of Berry v State of New York, 115 AD2d 153; Sevillia v State of New York, 91 AD2d 792; Goldstein v State of New York, 75 AD2d 613). Although separate affidavits of merit are not generally required to accomplish this (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11), they may be necessary when the claim is based on alleged medical or other specialized wrongdoing (Klingler v State of New York, 213 AD2d 378, 623 NYS2d 319; Schreck v State of New York, 81 AD2d 882 [medical affidavit establishing a causal connection]; Nyberg v State of New York, 154 Misc 2d 199 [highway design]). It has been stated that "[w]here the claim sought to be filed late is predicated on a matter requiring expert opinion, it must be supported by an affidavit of merit from a qualified expert, or based upon such opinion, in order to be considered meritorious" (62A NY Jur 2d, Government Tort Liability, §289).

Certainly Claimants would be required to present expert testimony at trial in order to succeed in this action. The test to determine whether at least a preview of such expert testimony is needed at this early juncture is whether the alleged wrongdoing of the State "can be assessed on the basis of common everyday experience and knowledge without reference to an expert's opinion" (Matter of Caracci v State of New York, 178 AD2d 876). Where such assessment cannot be made, lay opinion as to the existence of a wrong and/or the causal connection between wrong and injury simply cannot provide "reasonable cause to believe that a valid cause of action exists" (Nyberg v State of New York, 154 Misc 2d 199, supra at 202, quoting Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11). In Nyberg, where it was alleged that the State's design and construction of a highway intersection was negligent because no median barrier was installed, Judge Donald J. Corbett, Jr. held that it was "implausible" to expect lay opinion to support the contention that the absence of a median barrier was the proximate cause of the accident, and thus he denied the motion to late file.

Instead of an expert affidavit providing some evidence that the State's construction or maintenance of this breakwall area departed from commonly accepted practice, Claimants have presented the affidavit of Claimant Gloria Allen (Bergen Affidavit, Exhibit D), in which she describes the deceptive nature of the apparently "solid, sandy area" and also recounts a conversation with the Parks Officer who arrived at the scene and took her statement:
The Parks Officer advised me that in his opinion the incident should never have happened because the condition of these holes appearing along the edge of the stone breakwall at the beachfront is an occurrence that happens annually. He indicated the area needed to be roped off or re-built. He was very upset about the entire incident.

(Bergen Affidavit, Exhibit D, ¶11.) Setting aside, for the moment, the issues of whether the officer in question had authority to speak for the State or any reasonable basis for his opinion, the critical fact is that he is in no way portrayed as an expert on construction and maintenance of piers and seawalls.[5] Consequently, his opinion -- assuming that it is accurately related -- carries little more persuasive authority than Claimant's own.

It is the opinion of an expert that is needed to establish the merit of this proposed claim. I will candidly admit that I do not possess adequate or sufficient knowledge of what is ordinary and expected in the construction and maintenance of these beach structures, what conditions are naturally occurring around such structures and what conditions are not reasonably foreseeable in the absence of negligence. I doubt that most laypersons would be able to say whether the condition Claimants encountered is ordinary and to be expected, or dangerously uncommon, and even fewer could state whether the condition resulted from the State's construction of the pier and breakwall. These considerations are particularly important here where, as Claimants themselves acknowledge, landowners of beach property are not liable for dangerous conditions that are to be anticipated in such an area and that are transitory in nature (Herman v State of New York, 63 NY2d 822 ["defendant could not anticipate a danger to swimmers simply from the existence of the natural, shifting condition of sand bars in the ocean"]). It may be, as Claimants contend, that sinkholes of the type encountered by Claimants inevitably result from negligence in the design and construction of a breakwall or pier and are so uncommon that special warning should be given in areas where they are prevalent. The submissions currently before me, however, provide no reason to conclude that this is so.

On consideration of the factors set forth in Court of Claims Act §10(6), I conclude that Claimants are not entitled to the requested relief, and consequently the cross-motion for permission to file a late claim is denied.

Defendant's motion is granted and Claim No. 103513 is dismissed; Claimants' cross-motion is denied.

December 31, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]Counsel for Claimants asserts that the State has waived any objection to the description of the nature of the claim because only the asserted deficiency with respect to the location was set forth as an affirmative defense in the State's answer (Bergen Affidavit, ¶8). The requirement of Court of Claims Act §11(b) that a claim or notice of intention state "the time when and place where" a claim arose, as well as "the nature of same," is jurisdictional in nature (Cobin v State of New York, 234 AD2d 498), and, unlike the situation with jurisdictional defenses based on untimeliness or improper service, the Court of Claims Act does not require that a defense based on inadequate content be raised in, or prior to, the answer or be waived (see, Court of Claims Act §11[c]).
  2. [2]There is little dispute on this point. CPLR 3013 requires that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." The statements must "provide a factual basis for each cause of action or defense" 5 Weinstein-Korn-Miller, NY Civ Prac ¶3013.03; see also, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3013:4, at 723). The claim in this action contains almost no factual allegations and provides no meaningful notice to Defendant.
  3. [3]This, and other Court of Claims decisions, may be found on the Court of Claims website at http://www.
  4. [4]Although the notice of cross-motion describes the relief sought as permission to amend the notice of intention and claim or, alternatively, to serve a late claim, only the latter relief is discussed in the supporting papers. In any event, it is not possible to amend a notice of intention and amendment of a claim cannot be used to cure a jurisdictional defect (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985; Cannon v State of New York, 163 Misc 2d 623, supra; Grande v State of New York, 160 Misc 2d 383, supra).
  5. [5]It is possible that such testimony, if presented in proper form and with appropriate supporting information, could establish the apparent merit of a much more limited claim: one based solely on failure to warn of a dangerous condition. Claimants do not seek to limit their proposed action in that fashion, however, and in any event, these statements made by Claimant and not of the officer himself, with no indication that he had the requisite knowledge to form such an opinion, cannot suffice.