New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK, #2004-013-017, Claim No. 108095, Motion Nos. M-67388, CM-67651


Case Information

KYUNG MI LEE, Administrator of the Estate of YEOUN-SOON LEE, Decedent
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: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 1, 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 and by Claimant on cross-motion seeking to amend the claim:
Notice of Motion, Affidavits, Affirmation and Exhibits Annexed

Notice of Cross-Motion, Affirmation and Exhibits Annexed

Reply Affirmation

Filed Papers: Claim Upon the foregoing papers, the motion is granted in part and denied in part, and the cross-motion is denied.

The Defendant moves to dismiss the claim, pursuant to CPLR 3211(a)(3) and (a)(7), as well as Court of Claims Act §10(2) and §10(3). The Defendant's motion is made in lieu of an answer (Court of Claims Act §11[c]), and thus it has not waived any defenses related to timeliness or manner of service of the claim. In response, in addition to opposing the motion, the Claimant seeks permission to file an amended claim.

The claim arose out of a fatal motor vehicle accident on the Lake Ontario State Parkway (Parkway) on the evening of August 4, 2001, at about 9:48 p.m. Claimant's decedent Yeoun-Soon Lee (hereinafter Decedent) was crossing the parkway by foot when she was struck and killed by an automobile driven by one Alfonso Musso.

A notice of intention to file a claim was served upon the Defendant on May 8, 2002, some nine months after the accident. The notice of intention, in paragraph 7, alleges certain wrongful and negligent acts by the Defendant.

The claim was served and filed with the Clerk on August 4, 2003, two years to the day from the date of the accident. The claim alleges that limited letters of administration of the Decedent were issued to Claimant Kyung Mi Lee by the Monroe County Surrogate's Court on February 7, 2002. The Decedent allegedly had been fishing on the south side of the Parkway, approximately one-half mile west of Long Pond Road, and perambulated to the north side of the Parkway to fish on the other side. It is alleged that the Defendant "knew of the propensity of people to fish in the area where Decedent was fishing and to cross and traverse the road to fish on either side of the road, and failed to take appropriate measures to prevent people from doing the same and/or taking any steps to keep such users of the area safe" (Claim, ¶11). It is further contended that the Defendant "failed to properly supervise that area and/or the traffic in the area" (Claim, ¶12), noting that a state trooper was a short distance away running radar on the evening of the accident.

The Defendant seeks dismissal of the claim because it purportedly fails to state a cause of action for which relief can be granted because, inter alia, the Decedent was willfully engaging in jaywalking in the dark in an area where pedestrians are expressly prohibited. The Defendant cites chapter and verse of the Vehicle and Traffic Law §1630, and certain park rules which prohibit pedestrians, and thus urges that it breached no duty to provide safe facilities for pedestrians, since they are prohibited from using the Parkway. To the extent that Claimant alleges negligence by the State Police in failing to supervise the area, Defendant contends that there is no showing of a special relationship between the Decedent and the State Police (citing Cuffy v City of New York, 69 NY2d 255), and thus nothing that could cast the State in liability relying upon a theory of negligent performance of police duties. Defendant also urges that Decedent's purported violation of Vehicle and Traffic Law §1152, as relevant to the instant matter, requiring every pedestrian crossing a roadway to yield the right-of-way to all vehicles on such roadway, constitutes negligence per se. Thus, concludes the Defendant, there is a failure to state a cause of action.

Secondarily, Defendant seeks to dismiss as untimely that part of the claim which alleges a survival action for the Decedent's pain and suffering from the time of impact to her subsequent death. Defendant urges that a claim must be served and filed within 90 days of accrual of such cause of action, unless a notice of intention has been timely served within the said 90 days.

In response to the motion, Claimant seeks to amend the claim, and opposes the motion to dismiss on untimeliness grounds. I will first address the timeliness issue. The Claimant is correct that pursuant to Section 10(2) of the Court of Claims Act, a claim sounding in wrongful death shall be filed and served within 90 days after the appointment of an executor or administrator, unless a notice of intention is duly served, which would extend the time within which the claim may be served and filed to two years after the death of the decedent. In any event, the claim must be served and filed within two years of the death of the decedent.

Here, the limited letters of administration were issued by the Surrogate's Court on February 7, 2002. On the 90th and last day to do so, Claimant served the Defendant with the notice of intention. That provided a period of up to two years from the date of death to serve and file a claim. Again, on the last possible day, the two-year anniversary of the date of death, on August 4, 2003, Claimant served and filed the claim herein. Claimant is thus correct that the claim, insofar as it alleges wrongful death, is not untimely.

However, Claimant totally misses the point. All the cases cited in Defendant's papers supporting dismissal on timeliness grounds address the pain and suffering prior to a decedent's death, not the wrongful death claim itself. The service and filing requirements for any cause of action sounding in negligence for conscious pain and suffering is governed by Court of Claims Act §10(3), not §10(2). Claimant has neither addressed this issue nor attempted to distinguish the unequivocal line of cases:
It is by now well established that Court of Claims Act §10(2), which provides that a claim against the State for wrongful death must be filed within 90 days after the appointment of a personal representative of the decedent, does not apply to a survival action to recover for the decedent's conscious pain and suffering (see, Barrett v State of New York, 161 AD2d 61, 64; DeFilippis v State of New York, 157 AD2d 826; Kaplan v State of New York, 152 AD2d 417). Such survival actions are governed instead by Court of Claims Act §10(3), which requires that the claim, or a notice of intention to file a claim, be filed within 90 days "after the accrual of such claim".

Pelnick v State of New York
, 171 AD2d 734, 735 (also see Aronson v State of New York, Ct Cl, #2002-028-075 [Motion No. M-65339], Dec. 27, 2002, Sise, J.).[1]

Here the accident occurred on August 4, 2001, and in order to timely assert a cause of action for conscious pain and suffering, a claim must have been served and filed, or a notice of intention served, within 90 days thereafter. Since the notice of intention here was served on May 8, 2002, some 270 days after accrual of the cause of action (and more than 180 days late), it may not be used to extend the time to bring the action for personal injury. Accordingly, that part of Defendant's motion seeking dismissal of the cause of action for conscious pain and suffering is granted.

With respect to the cross-motion to amend the claim, it is denied. First, Claimant makes her cross-motion conditionally, to wit, should the Court address the issue of recklessness, then Claimant should be allowed to amend her claim to provide a claim for recklessness. The conditional nature of the cross-motion is puzzling, either Claimant wishes to allege a claim for recklessness or she does not. But that is not the reason for denial of the motion. While the Defendant cites certain decisions where motions to amend a claim may have been denied, inter alia, for the failure to append a proposed amended claim, other cases have held that it is not a formal prerequisite (see, e.g. Amalfi v State of New York, Ct Cl, #2001-005-517 [Claim No. 91180 - Motion No. M-60731], May 29, 2001, Corbett, J.). However, in the primary published case on this issue, Judge Louis C. Benza observed:
[W]here the proposed amendment is purely formal, or where it is of a character which does not affect the issues, it is sufficient to set out the exact language of the proposed amendment in the notice of motion and it is not necessary to serve a copy of the proposed amended pleading with the motion papers, for the adverse party and the court are thus just as fully advised of the exact terms of the entire proposed amended pleading as if one had been served with the notice of motion [citations omitted].

Rodriguez v State of New York
(153 Misc 2d 363, 364).

Here Claimant did not even recite the language she sought to have the Court consider, and I decline to grant the cross-motion.

Thus I am left with the motion for dismissal based upon the purported failure to state a cause of action, outlined above. The Defendant relies in strong measure on the decision by Judge Donald J. Corbett, Jr., in Arberger v State of New York (Exhibit C to the moving papers), addressing a pedestrian accident on the Inner Loop in Rochester, a controlled access highway. Indeed, there might be reasonable comparability between the Arberger case and the claim at bar, also involving a limited access highway, but there are at least two significant factors, which, at this time, militate against granting a motion to dismiss for the failure to state a cause of action. First, as Claimant aptly notes, the Arberger decision came about after a bifurcated trial on the issue of liability, while here there has been no discovery whatsoever. Secondarily, in Arberger, there were serious questions of proximate cause, given claimant's high level of intoxication as well as the culpability of the driver of the motor vehicle which struck him driving at 9:00 p.m. without any headlights operating. Whether discovery will provide Claimant with information to pursue a claim that the State violated a duty to pedestrians in the area of this accident, is best determined after Claimant has had an opportunity to conduct discovery. I am disinclined to deprive Claimant, at this preliminary stage, of the opportunity to obtain discovery, although future motion practice in this matter would not be surprising. Accordingly, the motion to dismiss for the failure to state a cause of action is denied.

The Clerk is directed to serve this decision and order upon the parties.

March 1, 2004
Rochester, New York

Judge of the Court of Claims

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