New York State Court of Claims

New York State Court of Claims

ROSARIO v. THE STATE OF NEW YORK, #2001-016-061, Claim No. 97921, Motion No. M-63348


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:
Murray S. Axelrod, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
August 1, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion to dismiss the claim of Ramon Rosario - - arising from his trip and fall at Riverbank State Park in upper Manhattan – on the basis that the claim lacks the specificity required by subdivision b of section 11 of the Court of Claims Act.

Compliance with §11.b is a jurisdictional prerequisite to the viability of a claim. Phillips v State of New York, 237 AD2d 590, 655 NYS2d 638 (2d Dept 1997); Byrne v State of New York, 104 AD2d 782, 480 NYS2d 225 (2d Dept 1984), lv denied 64 NY2d 607, 488 NYS2d 1023 (1985). Where jurisdiction is implicated, a defendant is not required to look beyond the four corners of the claim to determine the essential facts. See, for example, Schneider v State of New York, claim no. 91422, motion no. M-51856, cross-motion no. CM-52045, filed September 14, 1995 (Silverman, J.).

The factual assertions contained in the claim are as follows:

The date and time of the accident was March 25th, 1996 at about 12:30 o'clock...[on] the baseball field of the RIVERBANK STATE PARK, located at West 137th Street and Riverside Drive, New York, New York.... That at said time and place ....Claimant was caused to trip and fall at a device created by defendants for the purpose of securing the "base" forming home plate, and which device is part of an approximately 4" square cut out in the astroturf, (in the center of which is a square metal pipe) and which astroturf was unsecured and raised from the ground... [Defendant had failed] to rope off, barricade, mark or otherwise isolate the field. [Def affirm, exh A, claim ¶¶ 2, 3 and 4].

Defendant maintains that what is missing from Rosario's narrative - - and fatally jurisdictionally so - - is a more precise description of the mechanics of the fall. For example, did Rosario catch his heel on the device which secures home plate (def affirm, ¶ 7)? In Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646 (1980), a case cited by each party, the Fourth Department stated:
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. [78 AD2d at 767, 433 NYS2d at 648.]

With the location uniquely fixed and with the offending defect described quite precisely, no precedential support has been advanced for the proposition that §11.b requires knowledge of whether claimant simply tripped or caught part of his foot, and if so, which part thereof. Compare to, for example, Cobin v State of New York, 234 AD2d 498, 651 NYS2d 202 (2d Dept 1996) and Sheils v State of New York, 249 AD2d 459, 671 NYS2d 519 (2d Dept 1998).


Accordingly in view of the foregoing, and having reviewed [1]the parties' submissions, IT IS ORDERED that defendant's motion no. M-63348 be denied.

August 1, 2001
New York, New York

Judge of the Court of Claims

[1] The papers submitted were as follows -- 1) from defendant: a Notice of Motion and an Affirmation in Support with exhibits A through G appended; and 2) from claimant: an Attorney's Affirmation, an Affidavit of Janet Rosario, and exhibits A and B. As indicated, because of the jurisdictional nature of §11.b, the only factual information that comes into play for our purposes here is that from the claim itself.