Luders Massillon, the Claimant herein, alleges in Claim Number 100470 that he
was injured while he was incarcerated at Fishkill Correctional Facility
(hereafter Fishkill) due to the negligence of Defendant's agents in placing him
in an overcrowded and dangerous cell on or about March 7, 1999. Trial of the
matter was to have proceeded at Fishkill on February 21, 2003.
On that date, the Defendant first made a motion to dismiss based upon a lack of
notice to the State of the location of the incident in question. In his claim,
Claimant had asserted that he was injured while incarcerated at Fishkill. As he
began to testify, he asserted that the incident had occurred at Mid-State
Correctional Facility (hereafter Mid-State), and had nothing to do with
Fishkill. Defendant argued that there was prejudice to the State because of the
lack of notice concerning the location where the claim arose.
Additionally, Defendant made a motion to preclude the Claimant from offering
any evidence as to matters that were the subject of a Demand for A Verified Bill
of Particulars served on Claimant on February 3, 2000. In a prior Decision and
Order dated October 10, 2000, the Court had directed that such preclusion apply
should Claimant fail to respond to the Demand for a Verified Bill of Particulars
"within 30 days of service of this order." [
Massillon v State of New York
, Claim No. 100470, Motion No. M-62120,
O'Rourke, J., filed October 13, 2000]. No affidavit of service indicating that
Defendant served this order upon Claimant, or any other indication of receipt by
Claimant of the order, has been offered by Defendant. This Court directed
Claimant to investigate his paperwork and provide proof that he had served the
demanded Bill of Particulars upon the Attorney General's office within two (2)
Court of Claims Act §11(b) 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...."
As recently noted by the Appellate Division, "[i]t is axiomatic that the
sufficiency of a claim rests solely upon the assertions contained therein, and
defendant is not required to go beyond the claim in order to investigate an
occurrence or ascertain information that should have been provided pursuant to
Court of Claims Act §11...
." Lepkowski v State of New York
754 NYS2d 772, 774 (3d Dept 2003); see also
, Cobin v State of New
, 234 AD2d 498, 499 (2d Dept 1996), lv to appeal dismissed
NY2d 925 (1997), rearg denied
, 91 NY2d 849 (1997). The statement
describing the particulars of the claim should be of "sufficient definiteness to
enable the State to investigate the claim promptly and to ascertain its
liability under the circumstances." Cobin v State of New York
499. The failure to include the location - especially where the deviation
between the geographical location asserted and where the alleged claim actually
arose is so extreme - is an omission warranting dismissal of the claim. The
omission here is not the difference between one area of a boardwalk and another,
for example, or the difference between picnic areas in a large park, both of
which location descriptions have been deemed inadequate in other cases [See,
, Cobin v State of New York
; Schneider v
State of New York
, 234 AD2d 357 (2d Dept 1996)]. Instead, the omission is
even more glaring, as it is the difference between the locations of correctional
facilities in different parts of the State of New York.
Accordingly, the Court does not reach the Defendant's other motion with respect
to preclusion of evidence based upon a failure to provide a Bill of Particulars,
although it is also noted that no proof of service of a Verified Bill of
Particulars by Claimant upon Defendant has been produced.
The Defendant's motion to dismiss is hereby granted and based upon lack of
notice and undue prejudice to the State, Claim Number 100470 is hereby dismissed
in its entirety.
Let judgment be entered accordingly.