New York State Court of Claims

New York State Court of Claims

Artache v. THE STATE OF NEW YORK, #2003-033-032, Claim No. None, Motion No. M-66864


Case Information

MARK ANTHONY ARTACHE, infant by his mother and natural guardian, ARLETTE AVILLAN, and ARLETTE AVILLAN, individually
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Dinkes & Schwitzer, Esqs.By: William R. Hamel, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Esq.
Third-party defendant's attorney:

Signature date:
September 29, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion of Mark Anthony Artache, an infant by his mother and natural guardian, Arlette Avillan and Arlette Avillan individually (hereinafter movants) for an order to treat movants notice of intention as a claim pursuant to Court of Claims Act §10(8).[1]

The claim arises from an alleged accident to infant movant when he was caused to trip and fall on debris from a sand dune at Wildwood State Park on May 27, 2000.

On August 24, 2000 claimant's served a Notice of Intention upon the New York State Attorney General's Office. On November 25, 2000, defendant served a Verified Answer and Demand for Verified Bill of Particulars upon claimant. On May 13, 2002, movants intended to serve a claim upon the Attorney General and file the document with the Court, however, the claim was inadvertently entitled "Notice of intention to file a claim". On May 17, 2003, the Clerk of the Court returned movants' filing, with a letter stating that a notice of intention need not be filed with the Clerk of the Court (Affidavit of William R. Hamel ¶6).

As previously noted, movants move this Court for an order pursuant to Court of Claims Act §10(8) allowing the notice of intention to be converted into a claim. Court of claims Act§10(8)(a) states:

A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant

Movants' action is for personal injury. Therefore, if movants brought this case against an individual, CPLR 214 would give the movant a three year statute of limitations. In addition, CPLR 208 allows for a statute of limitation of up to three years after a disability ceases. In addition, the alleged incident occurred on May 27, 2000 and movants first submitted the motion on May 22, 2003. Accordingly, this is a timely made motion for the infant and the mother as an individual.

The Court must next determine if the notice of intention contains specific facts sufficient to constitute a claim. The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, affd 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. There must be sufficient detail to enable the State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, affd 98 AD2d 902). Pursuant to the Court of Claims Act §11(b), a claim must include the time when and place where the claim arose, the nature of the claim, items of damage or injuries sustained as well as the total sum claimed. If the original document does not include all that is essential to constitute a claim, the document is jurisdictionally defective (Grande v State of New York, 160 Misc 2d 383). The claim is subject to dismissal and "a lack of prejudice to the State is an immaterial factor" (Byrne v State of New York, 104 AD2d 782, 784, lv den 64 NY2d 607).

In Grande, claimant was involved in a motor vehicle accident when a tree fell on his motor vehicle. Claimant identified the location as traveling along Route 25A when a tree fell on his car. In another paragraph, claimant mentioned the Village of Brookville. The court inferred that the accident happened on Route 25A in Brookville. However, given the lack of traveling direction, intersecting roadways or any other landmark, the court found the claim to be jurisdictionally defective.

The notice of intention states "[t]he occurrence complained of took place on the premises of Wildwood State Park, in the Town of Riverhead, County of Suffolk, State of New York..." It later states the accident occurred as a result of a trip and fall by infant movant tripping on debris which included but is not limited to rocks, branches and debris from a sand dune. The notice alleges that this condition was an attractive nuisance for park visitors to walk and play on (Exhibit A to Affidavit of William R. Hamel, Esq.). The State claims they have not received a precise or adequate description of the location alleged, defect or injuries (Affirmation of John M. Shiels, Esq.,¶3). It appears that this description fails to describe the location of the incident with sufficient specificity to satisfy the requirements of Court of Claims Act §11. The description only states that the movant tripped in Wildwood State Park, which is comprised of hundreds of acres, and that he tripped on debris which came from a sand dune, but not which dune out of many in the park, or where he tripped.

As the court stated in Grande supra,
[t]he defendant is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11 (Maurer v State of New York, M-46911, Hanifin, J., Apr. 6, 1993). Further, the lack of prejudice is not a factor with regard to determining jurisdictional questions in the Court of Claims ( Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

(Id at 386-87).

The Court concludes that the description of the alleged location in the notice of intention fails to describe the location with sufficient specificity to satisfy the requirements set forth in Court of Claims Act §11.

Therefore, movant's motion to deem the notice of intention a claim is denied. This Court notes that movant, Mark Anthony Artache, is a minor, and, thus, has three years after reaching maturity to commence his claim (CPLR 208).

September 29, 2003
Hauppauge, New York

Judge of the Court of Claims

The following papers have been read and considered on movant's motion to trat the notice of intention as a claim: Notice of Motion dated May 21, 2003 and filed May 22, 2003; Affidavit of William R. Hamel, Esq., in Support of Motion with attached Exhibits A-E dated May 21, 2003 and filed May 22, 2003; Affirmation in Opposition of John M. Shield, Esq., dated January 5, 2003(sic) and filed June 9, 2003; Reply Affirmation of William R. Hamel, Esq., dated July 14, 2003 and filed July 15, 2003.