New York State Court of Claims

New York State Court of Claims

SALVAGGIONE v. THE STATE OF NEW YORK, #2003-032-080, Claim Nos. 107544, 107589, Motion Nos. M-66772, M-66819, CM-66861


Defendant's motion to dismiss for inadequate pleading (CPLR 3013) is denied, as the proper remedy would have been to move for a more definite statement (CPLR 3024[a]). Claimants' motion to amend the claim is granted.

Case Information

NANCY SALVAGGIONE and CHARLES SALVAGGIONE The caption has been amended to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107544, 107589
Motion number(s):
M-66772, M-66819, CM-66861
Cross-motion number(s):

Claimant's attorney:
SILVERMAN, BIKKAL & SANDBERG, LLPBy: Donald N. Silverman, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Paul F. Cagino, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
August 12, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed two claims with this Court. The first, Claim No. 107544, was filed on March 31, 2003 and was captioned "Notice of Claim." This claim is unverified. The second, Claim No. 107589, was filed less than two weeks later, on April 9, 2003. It is captioned "Claim" and is verified by claimant Nancy Salvaggione. In all other respects, the two claims are identical.[1] In lieu of answering, counsel for defendant has brought two motions, each seeking dismissal of the respective claim on the ground that its allegations do not comply with the pleading requirements of CPLR 3013 in that they are not "sufficiently particular to give the court and parties notice of the transactions [or] occurrences . . . intended to be proven and the material elements of each cause of action or defense".

As an initial matter, therefore, the Court, sua sponte, will dismiss Claim No. 107544 as jurisdictionally defective (see, Price v State of New York, 2003 WL 21669922 [Ct Cl]) and as duplicative of Claim No. 107589. As a result, Motion No. M-66772, which seeks dismissal of that claim, will be denied as moot.

Turning to the remaining motion, counsel for defendant asserts that the claim "provides no allegations of facts to support the conclusory averment of negligence [and] does not provide sufficient particular notice of what the defendant did wrong to cause the incident" (Cagino affirmation, ¶5). The factual allegations of the claim read as follows:
Claimant, Nancy Salvaggione, was severely injured when a commotion ensued at the base of the ski lift, Defendants failed to stop the ski left [sic] and claimant was caused to be precipitated off the ski lift and dropped onto the property below.
In response to the motion to dismiss, claimants have cross-moved to amend their claim to assert the following facts:
On Januray 18, 2003 at approximately 10:45 am, Claimant Nancy Salvaggione was riding on a chairlift located at Belleayre Mountain, Catskill Forest Preserve, Highmount, New York, upon lift known as "Unload #7". Claimant was sitting on the lift with a friend, as well as a gentleman who was employed as Ski Patrol for the mountain. As claimant's chair reached the place to disembark, claimant failed to disembark as she believed that her friend had fallen off of the chair and she did not want to ski into her. Claimant started yelling in an attempt to get an attendant's attention, continued to yell and scream to get the attendant's attention but the attendant did not stop the lift and the chair continued to go around the bull wheel of the lift, and head down the mountain. Fearing that as she went further down the hill, she would be in a more dangerous situation, claimant jumped off of the lift while it was still close to the ground.
(Silverman affirmation, Exhibit D.)

Defendant no longer contends that the description of the events giving rise to this claim are insufficiently described. Instead, in his reply affirmation, defense counsel argues that the proposed amended claim lacks merit because the only cause of claimant's injuries was her decision to jump off the chairlift. A determination of causation and any assessment of the reasonableness of a party's actions are more properly after both parties have had time to investigate the underlying facts, complete discovery, and in all likelihood consult with experts.

Leave to amend is to be "freely given" upon such terms as may be just (CPLR 3025[b]).

Factors to be considered in determining whether to allow amendment of a pleading are whether there would be any prejudice to the opposing party; the effect, if any, that amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; whether the proposed amendment is palpably improper or insufficient as a matter of law (Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124 [2st Dept 1999]; Gonfiantini v Zino, 184 AD2d 368, 370 [1st Dept 1992]; Harding v Filancia, 144 AD2d 538, 539 [2d Dept 1988]; White v State of New York, 161 Misc 2d 938 [Ct Cl 1994]).

Although an amendment cannot cure a jurisdictional defect in the original claim (Cannon v State of New York, 163 Misc 2d 623 [Ct Cl 1994]), defendant does not argue that the defects of the original claim made it jurisdictionally defective, only that it did not meet the pleading requirements of the CPLR 3013. Unless it is impossible to discern some cause of action recognized under the law from the total verbiage in a claim, a motion to dismiss on that ground should be denied "whether the pleading's language is wretched or poetic" (Siegel, Practice Commentaries, McKinney's Consol Laws of NY, CPLR 3013, C3013:7). The proper remedy is a motion for a more definite statement (CPLR 3024[a]) (id). Here, the same result has been achieved by claimants' decision to amend their claim.

Claim No. 107544 is dismissed as jurisdictionally defective and duplicative; Motion No. M-66772 is denied as moot; defendant's motion to dismiss Claim No. 107589 is denied; and claimants' cross motion to amend that claim is granted. Claimants shall serve and file a claim identical to the proposed amended claim submitted on the cross motion. Service shall be accomplished in the manner set forth in Court of Claims Act §11(a).

August 12, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal and on claimant's cross motion for permission to amend their claim:
Motion No. M-66772

1. Notice of Motion and Supporting Affirmation of Paul F. Cagino, Esq., AAG

Motion No. M-66819, Cross Motion No. CM-66861

2. Notice of Motion and Supporting Affirmation of Paul F. Cagino, Esq., AAG

3. Notice of Cross Motion and Supporting Affirmation of Donald N. Silverman, Esq, with annexed Exhibits

4. Reply Affirmation of Paul F. Cagino, Esq., AAG

5. Reply Affirmation of Donald N. Silverman, Esq

Filed papers: Claims

[1] Counsel for claimant acknowledges that the second claim (No. 107589) was filed and served because the earlier claim (No. 107544) had inadvertently omitted a verification (Silverman affirmation, ¶2, n1).