New York State Court of Claims

New York State Court of Claims

DEKOSKIE v. THE STATE OF NEW YORK, #2002-005-560, Claim No. 106661, Motion No. M-65892


Defendant's motion for dismissal of the claim is 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):

Claimant's attorney:
John Dekoskie,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On November 13, 2002, the following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Opposing Affidavit (denominated Verified Answer)
  2. Filed Paper: Claim
Upon the foregoing papers, this motion is denied.

Defendant seeks dismissal of the claim herein on the ground that the Notice of Intention to file a claim herein received by Defendant on January 31, 2001 (Exhibit A), is "insufficient to meet the minimum requirements of the Court of Claims Act."

The Notice of Intention alleges:
On 1/6/01 (6:30 AM) I fell of [sic] a top bunk bed. Resulting in a head wound, and back, neck and hip injuries. I was nocked unconies [sic]. And was taken by ambulence [sic] to a local hospital. Recieving [sic] 3 staples to close wound. And recieving [sic] treatment for other injuries still ongoing. End of report.
A claim was served on September 20, 2002, alleging, inter alia, negligence by the Defendant in disregarding its duty by permitting bunk beds at Five Points Correctional Facility (Five Points) to be improperly maintained in an unsafe condition, without guard rails or hand rails to assist an inmate in climbing, and alleges that this unsafe condition existed for a sufficient period of time, some two years prior to the incident in question on January 6, 2001, and that the State should have known of this alleged dangerous condition.

The Defendant seeks dismissal on the ground that the Notice of Intention fails to meet even the minimal basic information about the nature of the claim. Indeed, Defendant contends that the Notice of Intention alleges nothing about negligence or how or why the Defendant might be liable.

In opposition, Claimant notes that his Notice of Intention does allege the time and place where his claim arose and his injuries were sustained. He contends that it was the Defendant's duty to advise him that his Notice of Intention was insufficient as a matter of law, a theory that I reject. A Notice of Intention is not a pleading and does not generate or require a response from Defendant, which has no duty to do so.

Claimant also cites Ferrugia v State of New York, 237 AD2d 858, 859, which, inter alia, stands for the proposition that a Notice of Intention must set forth "the general nature of the claim with enough detail to enable the State to investigate" and where the "manner in which claimant was injured was stated as was the location of the injury, and how the State was negligent can be reasonably inferred (citation omitted)."

The Ferrugia court noted that even if the claim may have been poorly drafted, where a Claimant has substantially complied with the statutory requirements the Notice of Intention was not defective. The Notice of Intention here, with a fall from a bunk bed and an inmate allegedly taken by ambulance to a hospital, and with inmates under the complete and total control of the Defendant, substantially complies with the statute and is not defective. Defendant does not allege or demonstrate any prejudice due to the inartfulness of the Notice of Intention.

The motion to dismiss is denied.

February 14, 2003
Rochester, New York
Judge of the Court of Claims