New York State Court of Claims

New York State Court of Claims

DIFRISCO v. THE CITY UNIVERSITY OF NEW YORK, #2001-016-206, Claim No. 101410, Motion Nos. M-63472, CM-63622


Portion of motion for order striking affirmative defenses of failure to comply with specificity requirements of §11 of Court of Claims Act was granted and portion for late claim motion was denied without prejudice as moot. Cross-motion to dismiss on §11 grounds was denied.

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):
Alan C. Marin
Claimant's attorney:
John De Chiaro, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
December 3, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant's motion for an order pursuant to CPLR 3211(b) striking defendant's fourth and fifth affirmative defenses or, in the alternative, for an order permitting claimant to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). Defendant cross-moves to dismiss the claim. In the underlying claim, it is alleged that because of defendant's negligence, claimant tripped and fell in front of the bookstore at Lehman College in the Bronx. Defendant's fourth and fifth affirmative defenses assert that DiFrisco has failed to comply with §11 of the Act in that her claim does not adequately describe the sidewalk defect or its location. This assertion is also the subject of the cross-motion to dismiss.

Section 11 of the Act provides in relevant part that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained . . ." In this case, the claim provides in relevant part that "on August 24, 1999, at or about 2:00-2:30 pm, on the pavement in front of the Collegiate Bookstore at Herbert H. Lehman College, Bronx, New York . . . JoANN DiFRISCO was caused to trip and fall as a result of a defect in said pavement, to wit, a depression, hole and uneven portion of said pavement."

In Schneider v State of New York, 234 AD2d 357, 650 NYS2d 798 (2d Dept 1996), dismissal of the claim on §11 grounds was upheld where the claim asserted that claimant had fallen in the picnic area adjacent to the parking area at Heckscher State Park. On its motion to dismiss, defendant submitted a map showing a number of picnic areas near a number of parking areas scattered throughout the park. In contrast, in this case, nothing has been submitted by defendant to suggest that there is more than one "front" to the bookstore, that it was unduly large or that there was more than one bookstore. See also Cobin v State of New York, 234 AD2d 498, 651 NYS2d 202 (2d Dept 1996) (dismissal of claim was affirmed where it merely stated that claimant fell on the boardwalk at Jones Beach); Riefler v State of New York, 228 AD2d 1000, 645 NYS2d 556 (3d Dept 1996) (claim was found insufficient where it merely alleged that claimant fell on a "certain stairway") at a state correctional facility.

In Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646, 648 (4th Dept 1980), it was stated that "[w]hat his 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 liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State." I find that claimant has complied with this standard with regard to the location and description of the alleged defect.

Accordingly, IT IS ORDERED that cross-motion no. CM-63622 be denied. IT IS FURTHER ORDERED that motion no. M-63472 be granted to the extent that defendant's fourth and fifth affirmative defenses are hereby stricken and otherwise be denied without prejudice.

December 3, 2001
New York, New York

Judge of the Court of Claims