New York State Court of Claims

New York State Court of Claims

SUAREZ v. THE STATE OF NEW YORK, #2004-030-936, Claim No. 108509, Motion Nos. M-68871, CM-69032


Motion to dismiss affirmative defense that claim not specific enough to comply with Court of Claims Act section 11(b) is granted. Cross-motion to dismiss claim is denied.

Case Information

ANA SUAREZ The court sua sponte strikes "New York State Office of Parks Recreation and Historic Preservation" from the caption as unnecessary and improper.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court sua sponte strikes "New York State Office of Parks Recreation and Historic Preservation" from the caption as unnecessary and improper.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Michael S. Grossman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Gwendolyn Hatcher, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 10, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on claimant's motion to dismiss the Fifth and Sixth affirmative defenses from the answer and defendant's cross- motion for dismissal: Notice of Motion, Affirmation, Affidavit and Exhibits; Notice of Cross-Motion, Affirmation and Exhibits.

Claimant moves to strike two defenses from the answer, both alleging that the claim fails to comply with Court of Claims Act § 11(b): the Fifth Affirmative Defense (alleging that the claim fails "to include any particularization of the State's conduct as it regards the accident") and the Sixth Affirmative Defense (alleging that the claim fails "to include an adequate description of the condition alleged in the claim as a cause of the incident").

The instant claim, served and filed on November 10, 2003[1], alleges that on December 2, 2001, at 10:50 a.m., in the fitness room/ fitness center at Riverbank State Park located at 679 Riverside Drive in Manhattan, claimant "was injured in the fitness room/fitness center above described when an approximately 45 pound weight fell from the Leg Press machine within said premises onto her left foot." Such event is alleged to have been caused by the negligence of the employees of the defendant, the owner and operator of the premises.

As the Court of Appeals recently noted in Lepkowski v State of New York (1 NY3d 201, 207): Court of Claims Act §11(b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) ‘the nature of [the claim]'; (2) ‘the time when' it arose; (3) the ‘place where' it arose; (4) ‘the items of damage or injuries claimed to have been sustained'; and (5) ‘the total sum claimed.'" There is no question that the instant claim satisfies four of these five requirements, the only issue here being whether it adequately sets forth the "nature" of the claim.

Defendant objects that the claim fails to "particularize" the defendant's allegedly negligent conduct. The Lepkowski decision is instructive on the question of how much particularization is required by the statutory reference to the claim's "nature" in that the claim at issue there was dismissed for failing to comply with the other four requirements of the statute (time of accrual, place of accrual, items of damage and total sum claimed), yet the court found that it adequately set forth the claim's "nature." Thus, a great deal of particularization or detail is not required in order for a claim to meet this requirement (see also e.g., Rodriguez v State of New York, 256 AD2d 441). The claim at issue herein nevertheless falls short of the mark. There is no indication of what happened, what caused the weight to fall on claimant's foot or how the defendant was negligent. The mere fact that it is the owner of the premises and the owner of the leg press machine is not sufficient to indicate the nature of the claim of liability[2] and there is no specification of wrongdoing in either the notice of intention or the claim. Indeed, one reading the claim cannot ascertain if claimant was injured (a) as she was walking by the machine and the weight fell on her foot because of a defect in the machine; (b) while she was using the machine and the weight fell because of a defect or because she did not receive proper instruction; (c) as the result of an employee of defendant dropping the weight on her foot; or (d) some other scenario that would be covered by claimant's general allegations. Each of these situations would fall within the language of the claim[3]. A person reading the claim has no idea what happened to the claimant or why she alleges it was defendant's fault. That being the case, it does not set forth its "nature" within the meaning of the statute (Grumet v State of New York, 256 AD2d 441).

Accordingly, the motion to dismiss the affirmative defenses is denied, the cross-motion is granted and the claim is dismissed for lack of jurisdiction resulting from claimant's failure to comply with Court of Claims Act §11(b) (see Court of Claims Act §8: "The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article.")

December 10, 2004
White Plains, New York

Judge of the Court of Claims

[1]Claimant served a notice of intention to file a claim on February 28, 2002.
[2]In contrast to a situation where mere ownership is sufficient to establish liability without proof of negligence as e.g., in certain causes of action arising under the Labor Law.
[3]Defendant does not address the adequacy of the notice of intention, although that is the document relevant to the inquiry into defendant's ability to conduct a prompt investigation (see Lepkowski v State of New York, supra.) since that is the document that was served proximate to the accrual of the claim while the claim was served almost two full years later (Peralta v State of New York, Ct Cl, Scuccimarra, J., unreported decision dated February 10, 2004, UID No. 2004-030-902). Indeed, although the allegations of the notice of intention are essentially the same as those of the claim, defendant did not allege that the notice of intention was inadequate and that the claim was late filed for that reason, a potentially meritorious defense that was waived by defendant's failure to raise it in the answer (Court of Claims Act §11[b]).