New York State Court of Claims

New York State Court of Claims

KITT v. THE STATE OF NEW YORK, #2003-010-034, Claim No. 108055, Motion Nos. M-67393, CM-67472


Synopsis


Claimant's motion to strike defendant's seventh affirmative defense set forth in defendant's answer is granted and defendant's cross-motion to dismiss the claim for lack of subject matter jurisdiction is denied.

Case Information

UID:
2003-010-034
Claimant(s):
EUGENE KITT
Claimant short name:
KITT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108055
Motion number(s):
M-67393
Cross-motion number(s):
CM-67472
Judge:
Terry Jane Ruderman
Claimant's attorney:
NISHMAN & SAVITSKY, ESQS.By: Robert W. Nishman, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 6, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimant's motion to strike defendant's seventh affirmative defense set forth in defendant's answer and defendant's cross-motion to dismiss the claim for lack of subject matter jurisdiction:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Notice of Cross-Motion, Attorney's Opposing and Supporting Affirmation and Exhibits.....................................................................................................................2

Attorney's Reply Affirmation and Affirmation in Opposition..................................3

The seventh affirmative defense set forth in ¶ 12 of defendant's answer asserts lack of jurisdiction based upon claimant's failure to timely serve either a Claim or a Notice of Intention to File a Claim upon the Attorney General (Defendant's Ex. D).

The claim allegedly accrued on July 17, 2002 (Defendant's Affirmation, ¶ 6) and it is undisputed that in September 2002, claimant, acting pro se, timely served the Attorney General with a Notice on Intention to File a Claim (Defendant's Affirmation, ¶ 6 [defendant concedes notice of intention was timely]). The notice of intention provided:
"[t]he claimant is submitting this Notice of Intention pro se and the nature of this claim is as follows: While proceeding to the bathroom claimant slipped and fell due to the floor being wet. The place where this claim arose is: in Tappan Correctional Facility dormatory [sic], 9-3 The claim arose on July 17, 2002".

Claimant retained counsel after timely serving the notice of intention and a claim dated June 12, 2003 was served and filed (Defendant's Ex. C). Defendant responded by answer dated August 18, 2003 (Defendant's Ex. D). By letter dated August 28, 2003, defendant wrote to claimant's counsel:
"I received your request to withdraw the State's seventh affirmative defense. Although I acknowledged that a notice of intention was timely filed, the notice of intention is inadequate on its face. The notice does not allege an injury, damages or the time of the incident. Hence, please be advised that the seventh affirmative defense will not be withdrawn."

Defendant argues that the notice of intention is defective and therefore claimant may not avail himself of the two year time period to file a claim as provided by Court of Claims Act § 10(3). Thus, the claim is untimely and therefore warrants dismissal. Specifically, defendant argues that the notice of intention is defective on its face because it does not allege "an injury, any damages nor the time of the accident" (Defendant's Affirmation, ¶ 3).

Contrary to defendant's argument, Court of Claims Act § 11(b) provides, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed. *** The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated." It is further noted that:
"A notice of intention to file a claim does not serve the same purpose as the claim itself, and for that reason need not meet the more stringent requirements imposed upon the latter [citations omitted]. It is enough if the notice of intention relates the ‘general nature of the claim' - - a cause of action need not be stated - - and provides sufficient detail to enable the State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, 1099-1100, affd on opn below 98 AD2d 902)"
(Epps v State of New York, 199 AD2d 914). The Court finds that the notice of intention, which was timely served by a pro se inmate under the care and custody of defendant, was sufficiently specific to provide defendant with timely notice to investigate the claim and there is no indication that defendant will suffer any significant prejudice (see Lufker v State of New York, 239 AD2d 565 [notice of intention treated as claim]).

Accordingly, claimant's motion to strike is GRANTED and defendant's cross-motion is DENIED.


November 6, 2003
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims