New York State Court of Claims

New York State Court of Claims

VAN HOVE v. THE STATE OF NEW YORK, #2002-013-030, Claim No. 98633, Motion Nos. M-65072, M-65091, CM-65318


Motion to amend a claim is granted to correctly identify the material that the State applied to a highway spill, because no prejudice or delay will result, and the proposed amendment does not lack merit.

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):
M-65072, M-65091
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 19, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On June 19, 2002, the following papers were read on Defendant's motion for an order of dismissal and/or summary judgment in its favor and for permission to amend its answer (Motion No. M-65072); on Defendant's motion to strike Claimants' supplemental bill of particulars (Motion No. M-65091); and on Claimants' cross-motion for permission to file an amended claim and a supplemental bill of particulars (Cross-Motion No. CM-65318):
1. Notice of Motion (M-65072) and Supporting Affirmation of Thomas G. Ramsay, Esq., with Annexed Exhibits (Ramsay Affirmation No. 1)

2. Notice of Motion (M-65091) and Supporting Affirmation of Thomas G. Ramsay, with Annexed Exhibits (Ramsay Affirmation No. 2)

3. Notice of Cross-Motion (CM-65318) and Supporting Affidavit of Steven M. Zweig, Esq. (Zweig Affidavit), with Annexed Exhibits and Memorandum of Law

4. Reply Affirmation of Thomas G. Ramsay, Esq. (Ramsay Reply Affirmation), with Annexed Exhibits

5. Reply Affidavit of Steven M. Zweig, Esq. (Zweig Reply Affidavit), with Annexed Exhibits

6. Claimants' Reply Memorandum of Law

7. Filed Papers: Claim; Answer

The original claim in this action, filed in July 1998, alleged that Claimant Robert Van Hove was seriously injured when the motorcycle he was driving "slid on loose abzorball" and he was thrown off (Claim, ¶4). Specifically, it was alleged that "the State of New York should have placed or replaced ‘loose gravel' signs on said 490 East ramp to 590 North, should have swept the abzorball from said road, and in general, should have maintained said road in a condition whereby individuals such as the claimant could travel safely thereon" (id.). In Claimants' verified bill of particulars, dated October 16, 1998, the State's negligence was characterized as failure to maintain the roadway, to remove the "abzorball" from the road, to give proper notice of dangerous conditions, and to "exercise such care and caution as were reasonably required for the proper and safe maintenance of said roadway" (Claimants' verified bill of particulars, ¶2).

The relevant facts are not in dispute (see, summary of facts in Zweig Affidavit - ¶¶14-24 and Exhibit M). The "abzorball" (actually a material named Speedy Dry) was placed on the roadway, not by the State, but by a private firm, Baker Commodities, Inc. and Wm. A. Stappenbeck, a Division of Baker Commodities, Inc. (Baker). This was done as an emergency measure because there was a large grease spill that apparently came from one of their trucks. Before applying the Speedy Dry, Baker employees notified officials by way of a 911 call around 6:00 p.m. While they were removing the material, placing most of it in a 55-gallon drum, representatives of the New York State Department of Transportation (DOT) arrived on the scene. They told Baker employees to finish their task, which they did by pushing or sweeping any remaining Speedy Dry to the side of the road. DOT then began to place sand on the area of the spill, allowing some or all of it to remain in place in order to soak up the foreign substance.

At approximately 11:19 p.m., there was a one-car accident at the location in question. The State Police officer investigating that accident observed a significant amount of sand on the roadway, considered it to create a dangerously slippery condition, and placed a call for assistance to help him close the road. While he was still waiting for help to arrive, around 11:55 p.m., he witnessed Claimant's accident. Shortly thereafter, DOT officials returned to the scene and ordered the excess sand swept away.

In June 1999, Claimants sued Baker in Supreme Court, and Baker in turn moved to dismiss that action, contending that a superceding and intervening act -- DOT's action in spreading sand at the site and allegedly failing to clean it up -- had caused the accident. The motion was granted and the dismissal affirmed by the Appellate Division, Fourth Department in VanHove v Baker Commodities (288AD2d 927). The appellate court stated:

Defendants [i.e., Baker] sustained their initial burden on the motion of demonstrating that they were not negligent in the manner in which they carried out the cleanup and that their alleged actions or failure to act did not place plaintiff [i.e., Van Hove] in a more vulnerable position than if the cleanup had not been undertaken.

The State then commenced the first of the motions under consideration here, contending, among other things, that this claim is barred by the Appellate Division opinion under the doctrine of collateral estoppel. Almost immediately thereafter, Claimants submitted a supplemental bill of particulars that incorporated allegations relating to the State's mishandling of sand. Defendant then brought its second motion, to strike the new bill of particulars, and Claimants cross-moved for permission to file an amended claim and a supplemental bill of particulars. The proposed amendment, of course, includes allegations that the State was negligent in its handling of sand at the accident site (proposed amended claim, Zweig affidavit, Exhibit D, ¶4).

As an initial matter, I reject Defendant's argument that collateral estoppel applies here so as to bar this action. The question before the Supreme Court was whether any negligence on the part of Baker caused Claimant's accident, and it was determined that it had not. While that resolved the question of whether the application and removal of "abzorball" was negligent, it did not address or decide the central issue of this claim: whether negligence on the part of the State caused the accident.

Defendant asserts by implication that the original pleading cannot support or permit proof of negligence based on the State's handling - or mishandling - of sand and expressly argues that, by the supplemental bill of particulars and the attempt to amend the claim, Claimants are attempting to improperly introduce a "new" theory or cause of action that is not time barred (CPLR 214; Court of Claims Act §10[6]). In my view, however, the original claim is sufficiently broad to support a theory of negligence based on the State's actions in applying and removing (or failing to properly remove) the sand.

Pursuant to CPLR 3013, "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." The principal purpose of a pleading, particularly a claim or complaint, is to provide notice, to advise the opposing party of the claim against it (Foley v D'Agostino, 21 AD2d 60). Although the "fact pleading" requirement of the earlier Civil Practice Act was dropped with the adoption of CPLR 3013,[1] still the "statements" in a pleading should be factual and should "provide a factual basis for each cause of action or defense" (5 Weinstein-Korn-Miller, NY Civ Prac ¶3013.03 [see also, ¶3013.01]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3013:4).

Here, the original claim contained a number of factual statements or allegations that are entirely relevant to the cause of action against the State, irrespective of the substance on which Claimant's motorcycle slipped. The claim adequately identified the date of the accident (April 24, 1998), the location of the accident ("Route 490 East ramp to Route 590 North in the City of Rochester"), the general nature of the accident (a motorcycle rider losing control when his machine slid on the roadway and being thrown from the vehicle), and, of course, the identity of the injured party. Setting aside the references to "abzorball," the claim also alleged that the State was negligent in failing to place or replace "loose gravel" signs on the ramp and, more generally, in failing to maintain the road "in a condition whereby individuals such as the claimant could travel safely thereon." These allegations, which are not restricted to the type of material on the road when the accident occurred, are quite sufficient to have provided Defendant with "notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved," even if that proof related to the State's handling of a material -- sand -- that was not expressly mentioned in the original pleading.

The "transaction" that gives rise to this claim is not the presence of a specific substance on the highway ramp, but rather the motorcycle accident in which Claimant was injured. If the original claim had contained no reference to "abzorball," but only the allegations of improper signing and failure to correct a dangerous condition, it is unlikely that Defendant would attempt to argue that the State, as the party responsible for the safety of the highway (Friedman v State of New York, 67 NY2d 271; Carroll v State of New York, 157 AD2d 697), did not have sufficient notice about the nature of the lawsuit. The most preliminary investigation would reveal two incidents relating to that date, location and time. One of these references was to an automobile driver who lost "control on speed-dry substance left on roadway earlier by NYS DOT" and the other involves a motorcycle rider (Claimant) whose vehicle encountered "gravel and sand that was on the roadway" (Zweig Affidavit, Exhibit K). In addition, DOT's own files also contain the Report of Highway Incident or Closing, reciting that sand was applied to the area on the night in question and that later "we were called again because the sand that was left on the road to absorb the grease was causing a slippery condition and there were two accidents caused by this" (Zweig Affidavit, Exhibit O). There was also frequent mention of the actual nature of the State's actions in the extended discovery in this action (Zweig Affidavit, Exhibit F [EBT testimony of Frank L. Jones - May 1999]; id., Exhibit G [EBT testimony of Russell Barber - May 1999]).

Most often, a defendant will complain that a claim's allegations are too vague or conclusory to meet the pleading requirements of either CPLR 3013 (Goldberg v Sitomer, Sitomer & Porges, 63 NY2d 831, cert denied 470 US 1028; Dibble v Board of Coop. Educational Servs., Allegany County, 103 AD2d 1026; Spallina v Giannoccaro, 98 AD2d 103) or Court of Claims Act §11(b) (Heisler v State of New York, 78 AD2d 767; Patterson v State of New York, 54 AD2d 147). Even then, the proper cure for such defect is a motion for a more definite statement (CPLR 3024), not dismissal of the action (Piche v Board of Educ. of Shenendehowa Cent. School Dist., 102 AD2d 956).

The situation presented here is different in that Defendant apparently is complaining that the pleading was too specific and those specific allegations were incorrect, but the test remains the same: did Defendant have adequate notice of the nature of the cause of action against it so as to properly prepare its defense? In my opinion it did. If indeed any remedial action is called for at this point, the proper response would be, as Claimants suggest, amendment of the claim to more accurately reflect the nature of the State's alleged wrong, as that information easily and readily became apparent to both parties as soon as discovery began. "Leave [to amend] shall be freely given upon such terms as may be just" (CPLR 3025[b]). Prejudice or surprise resulting to the opposing party, lack of merit of the proposed amendment, or an adverse effect on the orderly prosecution of the action are the principal grounds for denying such relief (McCaskey, Davies and Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755; Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124; Gonfiantini v Zino, 184 AD2d 368; White v State of New York, 161 Misc 2d 938), and none of those grounds are present here.

Defendant's motions to amend its answer to assert an affirmative defense of collateral estoppel, to strike Claimants' supplemental bill of particulars and to dismiss the claim are denied; Claimants' cross-motion to amend the claim is granted. Claimants may serve and file their amended claim within 30 days of service of a file-stamped copy of this order.

September 19, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]Under CPA 241, only "material" facts could be pled, and a pleading that incorporated legal conclusions or "evidentiary" facts could be dismissed.