2. Affirmation in Opposition of James L. Gelormini, Esq. ("Gelormini
3. Filed Papers: Claim (Claim No. 104974)
This action arises from personal injuries suffered by Lisa M. Pustell on June
30, 1996, when she fell into a hole in the walkway alongside the Erie Canal in
the Village of Pittsford. At the time of the accident, Ms. Pustell was 9 years
old and she is now 14 years old.
The posture of this action is, to say the least, unusual. In September 1996,
Lisa Pustell's parents, acting on her behalf and being represented by the first
of a series of attorneys, timely and properly served a notice of intention to
file a claim on the State of New York and the New York State Thruway Authority
(Infantino Affirmation, Exhibit A).
January 1999, which was more than two years after the accident, copies of a
claim were served, apparently by certified mail, return receipt requested, on
three named defendants: the State of New York, the Thruway Authority, and the
Canal Corporation. Defendants' answer, served in February 1999, raised several
jurisdictional defenses: inadequate description of the location of the incident
in the notice of intention; inadequate description of the location of the
incident in the claim; and untimeliness of the claim in that it was not served
within two years of the date of the injury. In reciting the latter two
defenses, Defendants also noted that the claim had not yet been filed with the
Court of Claims as of the date on which the answer was drafted.
On October 1, 2001, Claimants, for the first time, filed the claim with the
Court of Claims and, simultaneously, re-served each of the three defendants by
certified mail, return receipt requested (id., Exhibit D). This
claim was designated Claim No. 104974 by the Clerk's Office. As explained by
counsel, the "recent actions of mailing the Notice of Claim [sic] to the Clerk
of the Court of Claims for filing and mailing copies of the Notice of Claim to
the defendants were done under the belief that such filing and service were
timely and in preparation for the possibility that this Court may find the
relief requested in this motion unnecessary" (id., p. 4). By
agreement between the parties, no answer was served in response to this claim,
as it was identical in all respects to the claim that had been served, and
answered, in early 1999.
Defendant concedes that, as a result of the Court of Appeals decision in
Henry v City of New York (94 NY2d 275), the infant Claimant's time to
file and serve a claim has been (and still is) tolled during her infancy. In
Henry, the lower court had ruled that the disability of infancy ended
when the infant's mother retained counsel and timely filed a notice of claim
under General Municipal Law §50-e. The Court of Appeals reversed, holding
that CPLR 208 tolls a statute of limitations for the period of infancy, and the
toll is not terminated by the acts of a guardian or legal representative in
taking steps to pursue the infant's claim (id. at 279).
Consequently, Claim No. 104974, which was served in September 2001 and filed on
October 1, 2001, was timely. If the parties wish to stipulate that the answer
served in February 1999 is to serve as the answer to this claim, I see no
impediment to such an approach. I would suggest, however, that a written
stipulation to that effect be drafted and filed with the Court, along with a
copy of that earlier answer.
Defendant further contends, however, that even though it may be timely, the
claim is jurisdictionally defective because it contained an inadequate
description of the location of the accident. Information about the location of
an incident is sufficient, however, if it makes investigation possible
(Rhodes v State of New York, 245 AD2d 791; Grande v State of New
York, 160 Misc 2d 383), and in this instance, Defendant acknowledges that
shortly after the accident an employee of the New York State Canal Corporation
investigated the matter and was able to ascertain its location (Gelormini
I hold therefore that Claim No. 104974 is both timely and adequate, which makes
Claimants' motion for permission to late file (or, alternatively, to have the
notice of intention deemed the claim) unnecessary. The parties disagree as to
whether this matter is ready for trial. I conclude that it is not, as no bill
of particulars has been served, and the only depositions that have been
conducted are those of the Claimants, which was done by special agreement
between counsel because the Claimants now reside in Iowa and were in this area
only temporarily for depositions in a related Supreme Court matter.
Accordingly, a date for a conference will be set in this matter and the Court
will issue a scheduling order.
Claimant's motion is denied as unnecessary.