New York State Court of Claims

New York State Court of Claims

KLOS v. THE STATE OF NEW YORK, #2004-013-015, Claim No. 105011, Motion No. M-67566


Case Information

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:
Defendant's attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 27, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On November 19, 2003, the following papers were read on motion by Defendant for an order dismissing the claim:

Notice of Motion, Affirmation and Exhibit Annexed

Affirmation in Opposition

Filed Papers: Claim, Answer, Note of Issue, Bill of Particulars

The claim herein was filed on October 5, 2001, alleging damages for personal injury relating to an incident that occurred at Wyoming Correctional Facility on October 24, 2000. The claim alleges negligence relating to the purported failure of the Defendant to provide safe weight lifting equipment to inmates. The claim also alleges that the nature and seriousness of the injuries to the Claimant's right foot and ankle went undiagnosed and untreated for an extended period of time.

The Defendant seeks summary judgment dismissing the claim as being untimely. The Claimant here had served a notice of intention to file a claim on the Defendant on January 16, 2001, within 90 days of the date of the underlying incident (see Court of Claims Act §10[3]), thus theoretically extending Claimant's time to serve and file a claim to two years from the date of accrual.

The ground for dismissal upon which Defendant relies is the purported failure of the notice of intention to allege a cause of action sounding in negligence relating to the weight lifting equipment, and thus that Claimant did not timely assert such cause of action within 90 days of its accrual. Defendant argues that, since the notice of intention failed to allege such negligence, it cannot be used to extend Claimant's time to serve and file his claim.

The Defendant is required by statute (Court of Claims Act §11[c]) to preserve any defenses relating to timeliness with particularity as an affirmative defense in its answer or by pre-answer motion. Here, in its answer to the claim, the State alleged as its third affirmative defense that "the NI did not set forth the nature of the cause of action contained in the Claim and did not apprize defendant of the cause of action asserted in the claim" and thus it was untimely. I find that this affirmative defense was raised with sufficient particularity to have placed Claimant on notice of its contentions.

Thus, I now examine and compare the allegations of the notice of intention with those in the claim.

The notice of intention was prepared and served by the Claimant, pro se, before he retained counsel, and alleges that the State's negligence consisted of the "refusal of proper medical treatment by staff. Did not take x-rays until a week later" (notice of intention, ¶4). Counsel urges that a cause of action sounding in negligence is inferable from paragraph "5" of the notice of intention which describes the injuries or damages sustained as a "broken ankle[,] ligement [sic] damage sustained from broken weights falling on my ankle braken [sic] it (235 pounds)."

Given the reference in paragraph "5" of the notice of intention, albeit in the hand-written inclusion by Claimant, pro se, that injuries were sustained "from broken weights falling on my ankle," summary judgment dismissing the claim based on the failure to have spelled out the elements of the allegations may not lie.

A similar consideration was recently reviewed by the Hon. Terry Jane Ruderman in Kitt v State of New York (Ct Cl, #2003-010-034 [Claim No. 108055 - Motion Nos. M-67393 and CM-67472], Nov. 6, 2003)[1] where that pro se claimant timely served the Attorney General with a notice of intention to file a claim and then retained an attorney who timely served and filed a claim. While in that case Claimant sought to strike that affirmative defense by motion, the ultimate issue is the same here, to wit, the adequacy of the description of the nature of the claim in the notice of intention. Citing Epps v State of New York (199 AD2d 914), Judge Ruderman observed 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).

Judge Ruderman went on to hold 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])."

Although one might argue that the Claimant could have addressed the affirmative defense at an earlier opportunity, the Defendant, as it is permitted to do, waited until October 24, 2003, the third year anniversary of the accrual of the cause of action, to file its motion for summary judgment, thus foreclosing any possible relief pursuant to Court of Claims Act §10[8] or §10[6]. The motion was also brought some three months after the filing of the note of issue on July 18, 2003, obviously after completion of all discovery. The Defendant has not moved to strike the note of issue, and thus, it is fair to presume that all discovery has been completed, and that both parties were ready to go to trial on the "inmate work injury/med mal" as specified in the note of issue and for the negligent acts as alleged and further particularized in the Claimant's bill of particulars filed on June 4, 2002.

A notice of intention is not a pleading and therefore need not state all of the elements of a cause of action or list items of damages (Bensen v State of New York, 88 Misc 2d 1035; Barrett v State of New York, 85 Misc 2d 456), and it is not to be scrutinized under the standards applicable to a pleading (Sega v State of New York, 246 AD2d 753). Still, to achieve its central purpose, the document must apprise the State of the general nature of the claim; contain some meaningful reference to the factual basis of the claim so as to permit investigation; and identify the defect or wrongful actions by State officials that will allegedly give rise to liability (Schwartzberg v State of New York, 121 Misc 2d 1095, affd 98 AD2d 902, supra; Williams v State of New York, 77 Misc 2d 396).

Given the total lack of prejudice, the reference in paragraph "5" of Claimant's pro se notice of intention relating to broken weights falling on Claimant's ankle, and putatively and proximately causing a broken ankle, as well as the specific weight of 235 pounds, it cannot be said that the notice of intention failed to articulate the nature of the claim. I find that the notice of intention does provide the jurisdictional bedrock upon which this claim may rest. Accordingly, the motion is denied, and this matter shall be scheduled for a calendar call at which time it shall be set down for trial.

February 27, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]Decisions and selected orders of the Court of Claims are available on the Internet at www.