New York State Court of Claims

New York State Court of Claims

V. THE STATE OF NEW YORK, #2004-032-052, , Motion No. m-68208


Motion for permission to late file is denied because the proposed claim, while identifying the place and time of the automobile accident in which movants were injured, provides no specific allegations of wrongdoing on the part of defendant.

Case Information

KIMBERLY O'REILLY, Individually and as Parent and Natural Guardian of MIA WILSON, an Infant, and MADILYN WILSON, an Infant
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:
George E. Lamarche, III, Esq.E. Stewart Jones, PLLC
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michele M. Walls, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 21, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Movants' proposed claim[1] alleges that, on November 15, 2003, Mia Wilson and Madilyn Wilson were injured when the vehicle in which they were riding was struck by another vehicle. Movants' vehicle was proceeding south on State Route 9N, in the Town of Greenfield, and the car that struck them was driving west on Spier Falls Road which intersects with Route 9N. According to the proposed claim, the State's liability for movants' injuries is premised on its failure to carry out its duty "to so own, operate, maintain, sign and regulate the said roadway . . . in a safe and proper manner and condition for travel thereon by vehicles" (proposed claim, ¶8). This failure, it is alleged, allowed the road and subject intersection "to become and remain in an unsafe, unreasonably dangerous and defective condition, constituting a hidden peril, pitfall and/or concealed trap and thereby foreseeably causing grave peril to the vehicular traffic using the said roadway" (id., ¶9). The affidavit in support of the motion to permit filing of this claim contains no further details about the accident or the basis for the State's proposed liability, and the police accident report (Lamarche affidavit, Exhibit A) states only that one vehicle was southbound on Route 9N when the other vehicle "pulled out from Spier Falls Road" and struck it.

In this instance, it is unnecessary to consider any of the factors enumerated in Court of Claims Act §10(6) other than the apparent merit of the claim.
To establish sufficient merit, the movant must establish
that the proposed claim is not patently groundless, frivolous, or legally defective and that there is "reasonable cause to believe that a valid cause of action exists" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In many respects this is the most important of the enumerated factors, for even if all other factors favor granting the motion, it has been held that permitting a defective claim to be filed would be both meaningless and futile (Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967 [Ct Cl 1982]).
Pursuant to CPLR 3013, "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense."
The principal purpose of a pleading, particularly a claim or complaint, is to provide notice, to advise the opposing party of the claim (Foley v D'Agostino, 21 AD2d 60 [1st Dept 1964]). "[T]he primary function of pleadings," it is said is "adequately advising the adverse party of the pleader's claim or defense" (id., citing to David D. Siegel, A Biannual Survey of New York Practice, 38 St. John's L. Rev., pp 190, 199-200.) "Where a pleading is attacked for alleged inadequacy in its statements, our inquiry should be limited to ‘whether it states in some recognizable form any cause of action known to our law'" (id., citing to Dulberg v Mock, 1 NY2d 54, 56 [1956]) or, as stated elsewhere, whether the factual allegations contained within the pleading "indicate the existence of a cause of action" (Guggenheimer v Ginzburg, 43 NY2d 268 [1977]).
Although the "fact pleading" requirement of the earlier Civil Practice Act was dropped with the adoption of CPLR 3013,[2] still the statements in a pleading should be factual and should "provide a factual basis for each cause of action or defense" (Weinstein, Korn & Miller, New York Civil Practice: CPLR, ¶ 3013:3, see also, ¶ 3013:1; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3013:4, p 723).
When considered against these criteria, the instant proposed claim is entirely deficient. The only factual allegations it contains are the location and time of the accident, the directions in which the two vehicles were traveling, and the fact that they collided. All of the other allegations are conclusory statements and what could most accurately be described as legal conclusions. Conclusory allegations alone are insufficient to meet the pleading requirements of either CPLR 3013 (Johnson v Goord, 290 AD2d 844 [3d Dept 2002]) or the requirements of Court of Claims Act § 11 (b) (Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980]; Patterson v State of New York, 54 AD2d 147 [4th Dept 1976]["claimant has alleged injury due to defendant's negligence [but h]e has not alleged in what manner he was injured nor how the State was negligent"]). Nor can legal conclusions, unsupported by any facts, satisfy either pleading requirement (see, generally Chico v Nadler, 300 AD2d 105 [1st Dept 2002]; Spry v Delaware County, 253 AD2d 178 [3d Dept 1999]).
The proposed claim contains nothing that provides notice of the specific acts or omissions on the part of State officers or employees that movant will attempt to prove caused or contributed to her injuries. This degree of lack of specificity rises to the level of a jurisdictional defect, at least with respect to claims filed in this Court. The Court of Appeals has recently stated that the guiding principle of section 11(b) of the Act, which sets forth the required content of claims and notices of intention, is to enable the State to promptly investigate claims and to ascertain the possibility that it may be liable under the circumstances (Lepkowski v State of New York, 1 NY3d 201, 207 [2003], quoting Heisler v State of New York, 78 AD2d 767 [4th Dept 1980, supra]). It would be relatively easy for the State to obtain information about the accident, because the location and time are provided in sufficient detail, but movant has given no hint of the manner in which she will contend that the State, rather than the drivers of the two vehicles, is at fault and played some part in causing the collision.
Because the proposed claim does not provide "reasonable cause to believe that a valid cause of action exists" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11, supra), the motion is denied.

June 21, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim
1. Notice of Motion and Supporting Affidavit of George E. Lamarche, III, Esq., with annexed proposed claim and exhibit

2. Affirmation in Opposition of Michelle M. Walls, Esq., AAG

Filed papers: None

[1] The proposed claim is improperly captioned "Notice of Intention to File a Claim." Section 10(6) of the Court of Claims Act authorizes the Court to grant permission to file an untimely claim. There is no statutory provision permitting the filing of an untimely notice of intention.
[2] Under CPA § 241, only "material" facts could be pled and a pleading that incorporated legal conclusions or "evidentiary" facts could be dismissed.