This is defendant's motion to dismiss the claim of Eva H. Eckert on the grounds
that the notice of intention and claim fail to comply with §11.b of the
Court of Claims Act (the "Act"). Claimant cross-moves to dismiss the State's
fifth through ninth affirmative defenses, in which the State essentially alleges
a failure to comply with §11. In the alternative, Ms. Eckert moves for
permission to amend her notice of intention and claim.
In her notice of intention, Ms. Eckert asserts that because of defendant's
negligence, she tripped and fell "on an uneven sidewalk next to . . . New
Science Building, opposite the elementary school, at the Queens College Campus .
. . at 65-30 Kissena Blvd., Flushing, New York . . ." See exhibit A to
defendant's moving papers. Similarly, in her claim, Ms. Eckert describes the
accident as having occurred "at the campus of Queens College . . . at 65-30
Kissena Blvd., Flushing, New York . . . by the New Science Building Area facing
the elementary school." See Claim, ¶2. Section 11.b of the Act provides
that a "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." See Cannon v State of New York,
163 Misc 2d 623, 625, 622 NYS2d 177, 178 (Ct Cl 1994) (citation omitted) in
which it was stated that "[t]he claim must plead the facts relied upon to
sustain a recovery. In addition it must set forth a valid cause of action . .
." The purpose of §11 of the Act "is to give the State prompt notice of an
occurrence and an opportunity to investigate the facts . . ." Id., 163
Misc 2d at 626, 622 NYS2d at 179.
Defendant argues that claimant's description of the accident site is inadequate
for the purposes of §11.b, submitting the affidavit of Basil Bascetta,
Chief Administrative Superintendent of Buildings and Grounds at Queens College.
Mr. Bascetta states that the side of the New Science Building facing the
elementary school is 325 feet long and consists of two sidewalks and a driveway.
He adds that the sidewalk is 10 feet wide and after running 190 feet, is
interrupted by a 30 foot driveway before continuing another 105 feet. See
¶5 of the November 15, 2002 affidavit of Basil Bascetta. In view of the
foregoing, claimant's description of the accident site is inadequate for the
purposes of §11.b. See, e.g., Sheils v State of New York,
249 AD2d 459, 671 NYS2d 519 (2d Dept 1998) (a claim alleging that an accident
occurred in front of a property with a 1000-foot frontage was found
In Ms. Eckert's cross-motion papers, she argues that defendant "is actually in
a better position [than] claimant to know exactly where the accident occurred"
as two campus police officers responded to the accident and an incident report
was prepared by one of the officers. See p. 7 of the December 11, 2002
affirmation of Peter D. Baron. However, where jurisdiction is implicated,
defendant is not required to go beyond the four corners of the claim to
ascertain information which should have been provided in the claim itself. See,
e.g., Schneider v State of New York, Ct Cl filed 9/14/95,
Silverman, J. (unreported, claim no. 91422, motion no. M-51856, cross-motion no.
Because the notice of intention and claim in this case fail to comply with
§11 of the Court of Claims Act, this Court lacks jurisdiction over the
claim. See, e.g., Griffen v State of New York, Ct Cl dated
5/19/00, Marin, J. (unreported, claim no. 97707, motion no. M-61634).
With regard to Ms. Eckert's request that she be permitted to amend her notice
of intention and claim so as to comply with §11, such relief is not
available where the original notice of intention and claim are jurisdictionally
defective. See, e.g., Grande v State of New York, 160 Misc 2d
383, 609 NYS2d 512 (Ct Cl 1994) (where original claim failed to describe the
location of the accident with sufficient particularity for the purposes of
§11 and was thus jurisdictionally defective, the claim could not be
amended). Claimant may wish to bring a motion for permission to file a late
claim pursuant to §10.6 of the Court of Claims Act.
Accordingly, having reviewed the parties'
IT IS ORDERED that cross-motion
no. CM-66139 be denied, that motion no. M-66086 be granted and claim no. 104697