New York State Court of Claims

New York State Court of Claims

GRANT v. THE STATE OF NEW YORK, #2001-027-803, Claim No. 101490, Motion Nos. M-60961, CM-61202


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:
Mendelson & Mendelsonby: Cindy J. Mendelson, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Susan Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 11, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The court considered the following papers on defendant's motion to dismiss and claimant's cross-motion to strike affirmative defenses:

Notice of Motion, Affirmation and Exhibits

Notice of Cross-Motion, Affirmation and Exhibits

Defendant's Affirmation in Opposition to Cross-Motion

Defendant's Supplemental Affirmation and Exhibit

Claimant's Supplemental Affirmation and Exhibit

Claimant alleges that she was injured on October 1, 1998 when the automobile she was driving on the Bruckner Expressway in the Bronx was caused to skid on a "defective" portion of the highway, 200 feet west of its intersection with Whittier Street, and that such was caused by the negligence of the State in the design, construction, maintenance and repair of the roadway. Defendant raised a number of affirmative defenses in its answer, two of which form the basis of the instant motion to dismiss, and five of which claimant seeks to strike.[1]

Defendant's first ground for seeking dismissal, reflected in the Third Affirmative Defense, is that the claim fails to comply with Court of Claims Act §11 "by failing to include an adequate description of the condition alleged in the claim as a cause of the incident." Claimant's counsel's affirmation contains a piece of information that was not contained in the notice of intention or the claim: that the allegedly defective condition was a "wet and exposed metal plate" (the subject location was apparently a bridge over railroad tracks). Claimant's counsel points out that in addition to alleging that claimant's vehicle was "caused to skid" on the "defective roadway," the notice of intention had attached eight photographs, with descriptive captions, explicitly showing the subject condition. In response, defendant cites the decision in Quinn v State of New York (Ct Cl, unreported memorandum opinion and order filed September 27, 1995, Silverman, J.) for the proposition that, in considering the adequacy of an accident description contained in a notice of intention "the State is not required to go beyond the notice of intention in conducting its investigation" (id., 4). That statement was in response to a notice of intention that provided "no indication how [the] accident occurred and "fail[ed] to describe the nature of [the] accident" (id., 3), and a claimant who attempted to cure those defects by providing photographs attached to the papers submitted in opposition to the motion to dismiss. The crucial distinction between that case and the one at bar is that those photographs were not attached to the notice of intention while the photographs at issue herein were. Thus, they must be considered in determining whether that document fulfilled its jurisdictional purpose.

The role of a notice of intention is to "afford the State an opportunity to investigate a claim and prepare a defense," thus "there must be sufficient detail to enable the State to investigate" (Quinn v State of New York, supra., 3, citing Schwartzberg v State of New York, 121 Misc 2d 1095, affd 98 AD2d 902). The proscription against requiring the State to looking beyond the four corners of the document in order to obtain sufficient information to investigate, while precluding consideration of photographs submitted at a later date as part of motion papers, does not apply to photographs that are attached to the document itself in the first place. While it might have been better had the notice of intention explicitly stated that the cause of the slippery condition was an exposed metal plate, the wording of that document, combined with the photographs clearly showing the metal plate and identifying its location, was sufficient to put the defendant on notice of the precise nature of the claim and to afford the opportunity to investigate. The absence of a narrative reference to the metal plate, under these circumstances, is not jurisdictional. Thus, defendant's motion, to the extent that it based on the alleged insufficiency of the claim[2] is denied and the claimant's cross-motion to strike the Third Affirmative Defense is granted.

The second basis for the dismissal motion, reflected in the "First Defense" as set forth in the answer, is that "the State of New York does not own, operate, or maintain the situs of the accident." In support of its motion, defendant has submitted an affidavit from a regional claims engineer with the Department of Transportation stating (1) that he has reviewed records of the D.O.T., including "design records, bridge inventory records, construction records and official orders for highway maintenance jurisdiction"; (2) that the D.O.T. "is not in possession of any construction records or official orders for highway maintenance jurisdiction for the subject location"; and (3) that he has concluded that the City of New York owns and maintains the location in question. Attached to the affidavit is a map showing the subject location, and a one-page document titled "Bridge Identification" which states, inter alia, "Primary Owner ... City" and "Primary Maintenance ... City". One cannot conclude conclusively from this information that the State of New York had no role in the design, construction, inspection, maintenance or repair of the subject bridge[3] and indeed, claimant has produced a work permit issued by the New York City D.O.T. to the New York State D.O.T. on November 10, 1997, and renewed on July 20, 1998, allowing the State to carry out a resurfacing feasability study of the Bruckner Expressway, and to do "all work incidental thereto," as well as copies of Bridge Inspection Reports issued by the State D.O.T. on June 25, 1996 and December 10, 1998, which identify deterioration of the roadway in the area in question and which apparently include photographs of the exposed metal plate of which claimant complains. Under these circumstances, what is indicated is the presence of a legitimately-contested issue of fact, and the possibility of some degree of State responsibility for the condition of the roadway on October 1, 1998 can not be excluded. Thus, the State's motion to dismiss on these grounds is also denied. Since the possibility also exists that, when all of the relevant facts are elicited, there will not be a basis for State liability, claimant's cross-motion to strike the First Defense is also denied.

Claimant also seeks to strike the Fifth Affirmative Defense, which states that the claim is covered by Article 16 of the CPLR and §15-108 of the General Obligations Law, arguing that the limitation of joint and several liability does not apply where a defendant has a "non-delegable duty." Whether the State had any duty with respect to this roadway is open to question, whether any duty it did have was "non-delegable" within the meaning of the statute is necessarily open to more question, and the claimant's cross-motion to strike the Fifth Affirmative Defense is denied.

Defendant's Sixth Affirmative Defense states that the claim fails to comply with CPLR 3014 "by not numbering all the paragraphs therein." In actuality, the claim contains paragraphs numbered "1," "2", and "4," with an unnumbered paragraph between paragraphs "2" and "4." Claimant's counsel explains that the omission of the numeral "3" at the beginning of the unnumbered paragraph that begins at the top pf page two of the claim was a typographical error. Actually, to be exquisitely accurate, claimant also omitted a "5" from the last paragraph of the claim. Defendant does not explain how these omissions affected its ability to prepare a responsive pleading. In any event, the

claim should be deemed amended to include the two missing numerals, "3" and "5," in their respective locations, and the cross-motion to strike the Sixth Affirmative Defense is granted.

December 11, 2001
New York, New York

Judge of the Court of Claims

[1]The answer contains two defenses denominated "Second Affirmative Defense." The first of these seeks an offset for any damages for which claimant is entitled to reimbursement from a collateral source. That defense is not at issue herein. The second "Second Affirmative Defense" alleges that claimant failed to file the claim with the Clerk of the Court. Defense counsel states that, at the time the answer was prepared, defendant was under the impression that the claim had not been filed, but since it is now clear that the claim was properly filed, defendant agrees to withdraw that defense.
[2]Claimant having attached the photographs to the notice of intention, there was no need to attach them again to the claim.
[3]Actually, the State's engineer was apparently able to so conclude but the court is not.