New York State Court of Claims

New York State Court of Claims

DE TORRES v. THE STATE OF NEW YORK, #2002-011-517, Claim No. 104663, Motion Nos. M-64340 , CM-64486, CM-64449


Synopsis


Claimant's motion for leave to amend is granted.

Case Information

UID:
2002-011-517
Claimant(s):
ETTORE DE TORRES
Claimant short name:
DE TORRES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104663
Motion number(s):
M-64340
Cross-motion number(s):
CM-64486, CM-64449
Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Ettore DeTorres, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen E. Bryant, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 19, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant initially moved for summary judgment in this claim based upon loss of personalproperty. In response defendant moved to dismiss the claim on the basis that the failure to list each and every item of lost property in the claim presents a jurisdictional defect. Claimant then moved to amend the claim to include a list of the lost items.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

The claim is based on allegations that three bags of claimant's personal property were lost when he was transferred from Upstate Correctional Facility to Attica Correctional Facility. Though the missing bags were sent via the U.S. Postal Service, claimant maintains that defendant is liable for the loss because all of the property should have been transported by the Department of Correctional Services as part of his four bag allowance and that defendant did not provide him with the insurance receipts thereby depriving him of the ability to make a claim with the Postal Service.

Summary judgment is seldom appropriate in negligence actions (Berk v 11 Atlantic Avenue Realty Corp., 206 AD2d 976) because the issue of negligence, reasonableness under all the circumstances, can rarely be decided as a matter of law (Andre v Pomeroy, 35 NY2d 361, 364). Here, the question of whether claimant's property should have been packed in four bags instead of seven raises just such an issue of reasonableness and cannot be decided as a matter of law. In addition, a question of fact exists as to whether the failure to pack all of the items in four bags was a proximate cause of the loss. Furthermore, a question of fact exists as to whether the failure to produce the original postal insurance receipts was a proximate cause of the denial of the claim made to the post office. In denying the claim the post office cited not only the failure to produce the original insurance receipts but also the failure to provide proof of the value of the lost items. Accordingly, the motion for summary judgment is denied.

The motion to dismiss is also denied. Court of Claims Act § 11(b) requires that a "claim shall state the time when and place where such claim arose, the nature of the claim, and the items of damage or injuries claimed to have been sustained and the total sum claimed." The statute "does not require ‘absolute exactness', it requires 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. In short, substantial compliance with section 11 is what is required'" (Grumet v State of New York, 256 AD2d 441, 442). The claim sets forth that a number of bags of personal property were lost and that an institutional claim for the loss was denied. This information, together with the time and place of the loss as well as the allegation of negligence, is sufficient to enable the State to investigate the claim and determine its liability. Thus, the claim complies with the requirements of section 11.

Leave to amend a pleading should be freely given in the absence of prejudice or surprise resulting directly from the delay (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755). The amendment offered by claimant would simply amplify the claim to provide information that defendant has asserted should be in the claim. Defendant, however, has not asserted that the amendment will cause prejudice or inject surprise into this proceeding. Accordingly, the motion for leave to amend is granted.

The motion for summary judgment and the motion to dismiss are denied. The motion for leave to amend is granted and claimant is directed to serve and file, by regular mail, an amended claim setting forth all the allegations in the original claim and the new allegations regarding the items of property lost. Service and filing of the amended claim is to be completed within thirty days of service upon claimant of a file-stamped copy of this decision and order.


February 19, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

1. Notice of Motion dated November 20, 2001
2. Affidavit in Support of Ettore DeTorres sworn to the 23rd day of September, 2001 with exhibits annexed
3. Affirmation in Opposition to Motion for Summary Judgment and in Support of Cross-Motion to Dismiss of Eileen E. Bryant, Esq. dated December 11, 2001 with exhibits annexed
4. Notice of Cross-Motion dated December 15, 2001
5. Affidavit in Support of Ettore DeTorres sworn to the 15th day of December, 2001