New York State Court of Claims

New York State Court of Claims

PERALTA v. STATE OF NEW YORK, #2004-030-902, Claim No. 107542, Motion Nos. M-67396, CM-67664


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:
Mallilo & Grossmanby Francisco Pomara, Jr., Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Ellen Mendelson, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 10, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on defendant's motion to dismiss and

claimant's cross-motion for permission to interpose an amended claim: Notice of Motion,

Affirmation and Exhibits; Notice of Cross-Motion, Affidavit and Exhibits; Reply Affirmation

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)[1] 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, ensued.

As was recently reaffirmed in Lepkowski v State of New York (1 NY3d 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 767). Heisler is one of two decisions which defendant cites in support of its motion to dismiss.[2]

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.[3] 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 situation,[4] 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 10.[5] 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 requirement[6]. 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,[7] 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][8]and inadequate lighting and improper maintenance of the exterior premises" (78 AD2d 767, 768). The court held:
This notice of intention substantially complied with the statute because it states the time, place, nature of the claim, injuries and the total sum claimed. The State was thus adequately notified so that it could take such immediate investigative action as it deemed necessary. The manner in which claimant was injured and how the defendant was negligent were stated or can be reasonably inferred (Id., emphasis in original.)
(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.

February 10, 2004
White Plains, New York

Judge of the Court of Claims

[1]"The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed. * * * The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
[2]Heisler was a decision that affirmed a Court of Claims decision which granted claimant's motion to treat a notice of intention as a claim, a remedy which had its origin in Chalmers & Sons v State of New York (271 App Div 699, affd 297 NY 690) and has since been codified in Court of Claims Act 10(8). The Chalmers court wrote: "The character of the document must be determined by its substance. The only statutory distinction between the notice of intention and the claim itself is that in the notice of intention it is unnecessary to allege the items of damage and the amount claimed whereas the claim must contain that information . . . The sufficiency of a claim is to be tested by the provisions and purpose of the statute" (271 App Div 699, 701).
[3]Court of Claims Act section 10(3), applicable to claims for damages for personal injury or property damage based on negligence or other unintentional tort.
[4]An inadequate notice of intention served timely and an adequate claim served and filed more than 90 days but less than two years after accrual.
[5] Ninety days, as opposed to the three years that applies to negligence actions against non-governmental defendants (CPLR 214).
[6]Defendant does not address this argument to the notice of intention, since it seems not to want to draw attention to that document, but that is where the argument should be addressed.
[7]"The statement must be specific enough so as not to mislead, deceive, or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required (Chalmers & Sons v State of New York, 271 App Div 699, 701 affd 297 NY 690; Barski v State of New York, 43 AD2d 767; Otis Elevator Co. v State of New York, 52 AD2d 380, 384). Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements" (Heisler v State of New York, 78 AD2d 767, 767-768). See also, Cobin v State of New York (234 AD2d 498).
[8]Probably intended to read "poor."