New York State Court of Claims

New York State Court of Claims

TORRES v. THE STATE OF NEW YORK, #2001-014-532, Claim No. 102400, Motion Nos. M-62782, CM-62927


Synopsis


The claimant's motion to amend the claim to allege the place where it arose is granted. The failure to allege the place where the claim arose is not a jurisdictional defect, where a timely served proper Notice of Intention satisfied the requirements of Court of Claims Act §11(b).

Case Information

UID:
2001-014-532
Claimant(s):
ORLANDO TORRES The Court of Claims does not have jurisdiction over "The Supreme Court of the State of New York Bronx County" as an entity distinct from the State of New York (see, Court of Claims Act §9). Thus, the Court sua sponte amends the caption to delete that named defendant.
Claimant short name:
TORRES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court of Claims does not have jurisdiction over "The Supreme Court of the State of New York Bronx County" as an entity distinct from the State of New York (see, Court of Claims Act §9). Thus, the Court sua sponte amends the caption to delete that named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102400
Motion number(s):
M-62782
Cross-motion number(s):
CM-62927
Judge:
S. Michael Nadel
Claimant's attorney:
Silberstein, Awad & Miklos, P.C.By Sal A. Spano and Paul N. Nadler
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 30, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The following papers were read on the claimant's motion to amend the claim and on the defendant's motion to dismiss the claim: Notice of Motion, Affirmation and Exhibits annexed; Notice of Cross Motion, Affirmation in Opposition to Motion and in Support of Cross Motion and Exhibits annexed; (claimant's) Affirmation in Opposition; (claimant's) Amended Reply Affirmation.


The claimant has moved to amend the claim in several respects, only one of which is opposed by the defendant, namely: an amendment to allege the place where the claim arose, as required by Court of Claims Act §11(b).[1] The claim does not state where the incident took place. It is the defendant's position that this failure to comply with §11(b) is a jurisdictional defect, which cannot be remedied by amendment, and that the claim must be dismissed. While such would normally be the required consequence of a failure to allege the place where a claim arose (Grande v State of New York, 160 Misc 2d 383), the jurisdictional character of such failure is at issue in this claim since it is not disputed that the claimant herein timely and properly served a Notice of Intention which, according to counsel for the defendant, "was specific as to the location alleged." Affirmation in Opposition to Motion and in Support of Cross Motion, ¶8.

While of jurisdictional import, the requirements of §11(b) have consistently been applied in the context of their purpose, which is to enable the State to investigate the claim promptly and to ascertain any potential liability. See, Heisler v State of New York, 78 AD2d 767; Sheils v State of New York, 249 AD2d 459; Sega v State of New York, 246 AD2d 753, 755; Schneider v State of New York, 234 AD2d 357; Riefler v State of New York, 228 AD2d 1000, 1001; Harper v State of New York, 34 AD2d 865. The Notice of Intention served by the claimant upon the defendant does not suffer from any of the deficiencies of the claim; it satisfies the purposes of the statute in every respect. See, Cannon v State of New York, 163 Misc 2d 623, 626: "A notice of intention which satisfies the purpose of the statute will be sufficient to obtain jurisdiction over the State (Williams v State of New York, 77 Misc 2d 396)." Just as was the case in Cannon, amendment of this claim to allege the place where it arose remedies a pleading deficiency; there is no jurisdictional defect to be cured.

Significantly, the timely service of a proper Notice of Intention permitted the claimant to serve and file a claim at any time up to two years after the accrual of the claim. Court of Claims Act §10(3). The claimant's motion to amend the claim was served and filed before the expiration of that period, at a time when the claimant could have filed a new claim without leave of the Court.[2] Under such circumstances, amendment of the claim would not result in any prejudice to the defendant. "If there is no prejudice to the other side, leave to amend must be freely given." Siegel, NY Prac §237, at 378 (3d ed); CPLR 3025(b). The defendant has not suggested any prejudice which will result from amendment of the claim to allege the place where it arose.[3] The claimant's motion to amend the claim is granted.[4]

The defendant cross moves to dismiss the claim, even as amended, on the ground that it does not state a cause of action against the State,[5] because the allegations of negligence pertain to security provided by the defendant at the courthouse, for which the defendant is immune from liability.

The allegations of the claim involve an assault by an unknown third person upon the claimant, which took place in a bathroom at the Bronx County Courthouse. It is alleged that the assault resulted from the negligence of the defendant in its responsibility for the maintenance and operation of the building.

It is the defendant's contention that dismissal of the claim is required because "the provision of security against attacks from third parties is a governmental function and no liability arises from the performance of such a function absent a showing of a special duty of protection [citations omitted]." Marilyn S. v City of New York, 134 AD2d 583, 584-5.

It is the claimant's contention, on the other hand, that the alleged negligence of the defendant arises out of its exercise of proprietary functions in connection with the maintenance and operation of the building where the incident occurred.

To the extent that the conduct alleged involves the exercise by the defendant of proprietary functions, such as those of a landlord, it would not, necessarily, be immune from liability. Miller v State of New York, 62 NY2d 506. But the record at this point is insufficient to permit determination of the issue, which requires a factual basis for the analysis called for, as enunciated in Miller, at 511-512:
A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category.
In accordance with the foregoing, the defendant's cross motion to dismiss the claim is denied. The claimant's motion to amend the claim is granted. The claimant shall serve and file an amended claim, in the form in which it is annexed to his submission, within 30 days of the date of the filing of this Order.


April 30, 2001
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims




[1]Counsel for the defendant notes that the other amendments "are generally allowed by the Courts of this State where the other party is not unduly prejudiced." Affirmation in Opposition to Motion and in Support of Cross Motion, ¶7. The defendant has not suggested it would be prejudiced by those amendments.
[2]That the claimant had two years to serve and file a claim was noted by the Assistant Attorney General at a Preliminary Conference, on the record, held on September 22, 2000, at which time she also noted that under those circumstances the defendant had no objection to amendment of the claim to allege the location of the incident. The claimant's motion to amend the claim, and the defendant's opposition to it nonetheless ensued; as did the defendant's cross motion to dismiss the claim on this ground.
[3]The Court has not considered videotapes, submitted by the claimant, which purport to demonstrate that the incident was in fact investigated by the defendant soon after it occurred. Amended Reply Affirmation, ¶3. The defendant has not raised the issue.
[4]The Court has not addressed the alternative relief sought by the claimant, to treat the notice of intention as a claim (Court of Claims Act §10[8]). Application for such relief, if deemed necessary, may be made at any time until three years from the claim's accrual (alleged in the claim to be March 23, 1999), as could an application for permission to file a late claim (Court of Claims Act §10[6]).
[5]A reading of the proposed amended claim does not support the defendant's contention that it alleges intentional conduct and is therefore barred by a one year statute of limitations.