The court read and considered the following papers on defendant's motion to
claimant's cross-motion for permission to interpose an amended claim: Notice of
Affirmation and Exhibits; Notice of Cross-Motion, Affidavit and Exhibits; Reply
and Affirmation in Opposition to Cross-Motion.
This claim arose on June 20, 2002, when claimant allegedly tripped and fell on
a cracked and broken area of sidewalk abutting the premises at 10-06 35th Avenue
in Queens, said premises allegedly owned and maintained by the defendant's
Department of Correctional Services. On September 9, 2002, within 90 days of
accrual, claimant served a notice of intention to file claim on the attorney
general by certified mail, return receipt requested. That document identified
the place where the claim accrued as "a cracked & broken area of sidewalk
located on 10th Street, approximately 65 feet from the South East corner of 10th
Street and its intersection with 35th Avenue."
The instant claim, served and filed in March 2003, identifies the place where
the claim accrued as "the sidewalk abutting the premises located at 10-06 35th
Avenue Queens County," without further specification. Answering the claim,
defendant alleged that the court lacks jurisdiction because the claim fails to
comply with Court of Claims Act section 11(b)
by failing to include both (1) an adequate description of the location where the
claim accrued and (2) an adequate description of the manner in which the
incident occurred. The instant motion, in which defendant seeks dismissal for
lack of jurisdiction arising from these two alleged pleading defects,
As was recently reaffirmed in Lepkowski v State of New York
201), the "guiding principle" behind section 11(b)'s requirements is to "enable
the State . . . to investigate the claim promptly and to ascertain its liability
under the circumstances" (citing Heisler v State of New York
, 78 AD2d
is one of two decisions which defendant cites in support
of its motion to dismiss.
The other decision upon which defendant relies is Grande v State of New York
(160 Misc 2d 383), in which it was held that the identification of an
accident site as on Route 24A in the Town of Brookville was insufficiently
particular to comply with section 11(b) and that, since such insufficiency meant
that the claimant had failed to effectively invoke the jurisdiction of the
court, the defect could not be cured by an amendment of the pleading.
The principle underlying Lepkowski, Heisler, Chalmers and
Grande, and all other judicial analysis of section 11(b), is the basic
maxim (set forth in Court of Claims Act section 8) that the State's waiver of
its sovereign immunity is expressly conditioned on a claimant's compliance with
the provisions of Article II of the Court of Claims Act. Those provisions
govern the types of claims over which the court has jurisdiction (sections 8-a,
8-b and 9), the time in which a claim or notice of intention must be served and
filed (section 10) and the required contents and manner of service of a claim or
notice of intention (section 11).
As relevant here, claimant was required to serve and file his claim (i.e.,
commence the action) within 90 days of accrual, unless he served a notice of
intention within such period, thereby extending his time to commence the action
for an additional year and nine months.
Additionally, he was required to effect service by a method authorized by
section 11(a), which he did, and he was required to provide the information
specified in section 11(b).
Although defendant included a copy of claimant's notice of intention as part of
its motion papers, and noted that the document was duly and timely served,
defendant did not refer to it again, either in support of its motion or in its
reply to claimant's papers. Defendant states that the "claim only states
that claimant was caused to fall ‘on the sidewalk abutting the premises
located at 10-36 35th Avenue, Queens County' and that ‘claimant was caused
to trip and fall due to a cracked and broken area of sidewalk'." (Mendelson
affirmation dated September 12, 2003, par. 5, emphasis supplied). Defense
counsel then alleges that the area described by that language could be anywhere
within a 200-foot length of sidewalk and that the description is thus
insufficiently specific to delineate the "place where" the claim accrued, as
required by statute. In view of the purpose of the statute, defendant's
contention that such language is insufficient is well-taken, at least it would
be well-taken were it truly the "only" language at issue. Defendant totally
ignores the description set forth in the notice of intention.
It is difficult to perceive the exact nature of defendant's argument. Surely
defendant does not mean to argue that section 11(b) only applies to claims, not
notices of intention, since it is clear that in the reverse
the inadequacy of the notice of
intention and the passage of the 90-day period without service of a document
complying with the statute would vitiate any attempted correction in the claim.
Here, the document that claimant served within the 90-day period was clearly
sufficiently detailed to comply with the statute, and defendant does not argue
otherwise. Instead, defendant implies, but does not actually state, that where
a claimant chooses to proceed by notice of intention, it simply doesn't count in
the determination of whether a claimant has complied with the requirements of
the Court of Claims Act (except where the notice of intention is insufficient,
when it is the only thing that counts). Defendant offers no support for this
proposition, perhaps because it is unsupportable.
When the courts in Lepkowski, Heisler
, and every other decision that
examines the language of a claim or notice of intention consider whether the
document complies with section 11(b), the goal is invariably described as
determining whether the document afforded the opportunity to investigate
"promptly"; i.e., within the relatively short period specified by section
The issue is whether claimant provided
prompt and adequate notice of the relevant facts and allegations within the
statutory period. The information contained in the only document that was
served during that period is thus of crucial relevance.
Nothing in the decisions relied on by defendant states or implies that the
contents of the notice of intention are irrelevant to section 11(b) inquiry.
Indeed, in Grande, in response to the contention that the State was not
prejudiced by the inadequacy of claim because it had more specific information
in agency records, the court noted that "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 .
. . [section 11(b)]" (160 Misc 2d 383, 387, emphasis supplied). This language
recognizes that a notice of intention is not in the same category as the agency
records relied on therein. Indeed, service of a document that complies with
sections 10 and 11 is the sine qua non of Court of Claims jurisdiction
over tort claims. How, then, could it be rationally argued that we should
ignore the contents of that document when determining whether a claimant has
properly invoked that jurisdiction?
Although defendant correctly argues, based on Grande v State of New York,
supra (160 Misc 2d 383), that a jurisdictional defect may not be cured by
amendment, this principle has no application here. Since claimant properly
invoked the jurisdiction of the court by virtue of his timely and proper service
of a notice of intention that complied with section 11(b) followed up by service
and filing of a claim, within the extended period provided by section 10(3),
that states a cause of action in negligence, the failure to have included the
complete description of the location in the claim is a minor,
non-jurisdictional, pleading error and there is no barrier to addressing that
error by amendment.
Defendant also argues that the claim is somehow defective because it fails to
set forth the size or depth of the alleged sidewalk defect, although defendant
does not explain the source of this alleged
. There is no requirement in the
Court of Claims Act that any such information be set forth in a claim or notice
of intention. All that is required (other than with respect to damages) is the
time when and place where the claim accrued, and a statement of its "nature"
that is sufficient to provide for an investigation. Since claimant provided the
precise location of the allegedly cracked and broken sidewalk, it is difficult
to follow how the ability to investigate would be impaired by the failure to
note the size or the depth of the defect, or, for that matter, whether it was a
hole or a crack, or a series of cracks, or what it shape was, or how visible it
was, or how long it was there, or any number of factors that may ultimately be
relevant to the question of liability but have nothing whatsoever to do with the
ability to go to the site and investigate. The statute requires sufficient
information to allow the State to investigate. It does not require that
claimant actually conduct the investigation and provide the State with the
results in its notice of intention and/or claim.
Although defendant quotes Heisler
in support of its contention that the
claim herein is insufficient,
it ignores the
facts and holding of that decision. Heisler
was also a trip and fall
claim, with the notice of intention adequately setting forth the location and
alleging that claimant fell and fractured her leg "at approximately 8:45 p.m.
and as a result of proof [sic]
lighting and improper maintenance of the exterior premises" (78 AD2d 767, 768).
The court held:
(See also Lepkowski v State of New York, supra, 1 NY3d 201, in which a
pleading that was so lacking in detail that it failed to meet any of the four
other requirements of section 11(b) – the time when and place where the
claim accrued, the items of damages and the amount demanded – was
nevertheless held to adequately set forth the claim's "nature").
For the foregoing reasons, the court finds that defendant's contentions are
without merit and the motion to dismiss the claim for lack of jurisdiction is
denied. The court also strikes the Fourth and Fifth affirmative defenses and,
for the sake of clarity, grants claimant's motion for permission to submit
(i.e., serve and file) an amended claim, which shall be done within 30 days of
the date of this decision and order.
The parties shall appear at the Court of Claims, 26 Broadway in Manhattan, on
February 25, 2004 at 10:00 a.m. at a preliminary conference for the purpose of
finalizing a disclosure schedule.