New York State Court of Claims

New York State Court of Claims

PAGAN v. THE STATE OF NEW YORK, #2004-030-903, Claim No. 107631, Motion Nos. M-67397, CM-67649


Synopsis



Case Information

UID:
2004-030-903
Claimant(s):
ROGELIO PAGAN
Claimant short name:
PAGAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107631
Motion number(s):
M-67397
Cross-motion number(s):
CM-67649
Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
Harmon, Linder & Rogowskyby Bhavisha H. Patel, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Ellen S. Mendelson, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 15, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court read and considered the following papers on defendant's motion to dismiss the claim and claimant's cross- motion for permission to interpose an amended claim: Notice of Motion, Affirmation and Exhibits; Notice of Cross-Motion, Affirmation and Exhibits, Reply Affirmation and Affirmation in Opposition to Cross-Motion

According to the claim herein, which was served on April 16, 2003 and filed on April 18, 2003, claimant was injured on January 17, 2002 when he slipped and fell on a staircase at 80 Center Street in Manhattan. In its answer, defendant alleged that the court lacks jurisdiction over the claim because it was not served and filed within the 90-day period set forth in Court of Claims Act section 10(3). Defendant's motion to dismiss was made on such ground.

In opposition, claimant advises that the accrual date set forth in the claim was a mistake and that the incident actually occurred on January 17, 2003, which, by claimant's reasoning, would make the service and filing of the claim in April 2003 timely. Claimant cross-moves to amend the claim to set forth the correct accrual date.

The service and filing requirements of the Court of Claims Act with respect to the contents of a claim and the period in which such claim must be served and filed are intended to provide the State with prompt notice of the facts and allegations that form the basis of claimant's claim for relief so that it may conduct an appropriate investigation (Lepkowski v State of New York, 1 NY3d 201; Heisler v State of New York, 78 AD2d 767). The State's waiver of its sovereign immunity and the jurisdiction of this court are dependent on claimant complying with such provisions (Court of Claims Act section 8).

Manifestly, a claim that states that an incident occurred on January 17, 2002 provides neither notice of nor the opportunity to investigate an incident that in fact occurred on January 17, 2003. Thus, the claim is jurisdictionally defective, and such a defect may not be cured by amendment (Grande v State of New York, 160 Misc 2d 383). The court is without power to grant the relief requested in the cross-motion, which is denied.

Accordingly, the defendant's motion is granted and the claim is dismissed, without prejudice to an application pursuant to Court of Claims Act section 10(6), should claimant be so disposed.

October 15, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims