New York State Court of Claims

New York State Court of Claims


ROSWELL PARK CANCER INSTITUTE CORPORATION, #2004-034-501, Claim No. 102592, Motion Nos. M-67307, CM-67440


Case Information

HEATHER A. KERR The caption has been amended sua sponte to reflect the properly named defendants, The State of New York and Roswell Park Cancer Institute Corporation.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the properly named defendants, The State of New York and Roswell Park Cancer Institute Corporation.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
New York State Attorney General
By: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 23, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendants brought this motion pursuant to CPLR 3211 (a) (5), seeking to dismiss the Claim due to the expiration of the statute of limitations. Claimant cross-moved for leave to file a late Claim pursuant to Court of Claims Act §10 (6). The following papers have been submitted to the Court for review:
1. Claim, verified October 8, 1999, filed June 12, 2000;
2. Answer, verified July 19, 2000, filed July 24, 2000;
3. Notice of Motion, filed August 20, 2003;

4. Affirmation of Paul Volcy, Esq., dated August 19, 2003, in support of the motion with attached exhibits;
5. Notice of Cross-Motion, filed September 25, 2003;

6. Affidavit of Clayton Silvernail, Esq., sworn to September 22, 2003, with attached exhibits;

7. Attorney's Further Affidavit of Clayton Silvernail, affirmed October 8, 2003, with attached exhibits.

On consideration, the Court will grant Defendants' motion to dismiss, and deny Claimant's application for leave to file a late claim.

This Claim arose from an incident that purportedly occurred on October 1, 1998, on the "sidewalk adjacent to a parking lot/road area adjacent to the Roswell Park Cancer Institute on the Virginia side of the street at approximately 1:00 p.m. on said date" (Claim, ¶ 6). Claimant has alleged that she tripped over a protruding section of chain link fence and fell to the ground. In so doing she sustained severe injuries to her knee which required surgery and physical therapy. Claimant contends that Defendants, as the owners of the property, were negligent in the maintenance and repair of the property.

On December 14, 1998, Claimant served her Notice of Intention to File a Claim on the Attorney General. Undisputedly, that notice of intention did not recite the date of the incident. The Claim, which did recite the date of the incident was thereafter filed and served on June 12, 2000. Defendants filed their Answer on July 24, 2000, and specifically asserted the following in five separate affirmative defenses:
Further, Claimant's Notice of Intention is insufficient, in that it states neither the date of the incident nor the exact location. As such, the Notice of Intention was not properly or timely filed, as required by Court of Claims Act, Section 11, and this Court lacks jurisdiction.
Although paper discovery subsequently occurred and Claimant privately investigated whether the property was even owned by Defendants, she did not challenge the affirmative defenses or seek leave to file a late claim until Defendants filed the instant motion. At no point has Claimant alleged that Defendants waived their jurisdictional defenses, or otherwise lulled her into changing any planned course of action.

The State's waiver of sovereign immunity and consent to be sued is conditioned upon compliance with the requirements of Court of Claims Act § 11(b), which states that a notice of intention or claim "shall state the time when and place where such claim arose . . .". The requirements set forth in section 11 have long been recognized as jurisdictional in nature, and to be strictly construed (see generally Alston v State of New York, 97 NY2d 159; Finnerty v New York State Thruway Auth., 75 NY2d 721). The Court of Appeals recently addressed the specific issue herein, i.e., the jurisdictional consequence of the failure to recite the date of accrual in a notice of intention or claim, in Lepkowski v State of New York, 1 NY3d 201. The Court determined that a recitation of the "time when" the claim arose is one of the five specific substantive pleading conditions upon which the State has predicated its waiver of sovereign immunity, and that a notice of intention or claim that fails to conform with those requirements within section 11(b) is jurisdictionally defective.

Claimant has conceded that she did not allege the date on which the claim arose in her notice of intention, but urges that Defendants "with little effort the state could have investigated and ascertained the date" (Affidavit of Clayton L. Silvernail, ¶12). That argument, however, fails to recognize the jurisdictional nature of the pleading requirements of Court of Claims Act § 11 (b). The claim or notice of intention must stand on its own, and include all the information required by section 11; it is not the Defendant's burden to investigate and obtain the necessary information. (Lepkowski v State of New York, 1 NY3d 201; see also Cobin v State of New York, 234 AD2d 498, lv dismissed 90 NY2d 925).

In light of the above, Claimant's failure to list the date of her fall in the notice of intention renders it jurisdictionally defective. For that reason Claimant's time to file her claim was not extended beyond the ninety-day filing and service requirement to the two-year period allowed by Court of Claims Act § 10 (3), and the Claim filed June 12, 2000, must be deemed untimely (Torres v State of New York, 233 AD2d 389).

Claimant has urged this Court to apply principles of equitable estoppel to deny dismissal of the Claim. However, that doctrine cannot be asserted to cure a lack of jurisdiction (Pagano v New York State Thruway Auth., 235 AD2d 408, lv denied 90 NY2d 804; see also Matter of Welch v State of New York, 71 AD2d 494, 499, lv denied 50 NY2d 802). Moreover, even assuming the doctrine could be applied, Claimant has failed to set forth any factual basis to support her request. In order to prevail Claimant must present proof of a detrimental change in her position based upon actions by Defendants with respect to those defenses (Klopfle v New York State Thruway Auth., 177 AD2d 1059, 1060). Here, it is without question that Defendants raised repeated objection to the notice of intention in their Answer, which was filed well before her time to seek leave to file and serve a late claim would have expired. For those reasons the Court cannot deem Defendants to be equitably estopped from obtaining the relief sought herein.

The Court must deny Claimant's cross-motion for leave to file a late claim. Court of Claims Act § 10(6) allows for the discretionary grant of such relief "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Thus, an application to file and serve a late claim may only be considered if the underlying cause of action is not time-barred (Matter of Welch v State of New York, supra; see also Berger v State of New York, 171 AD2d 713, 716-717). The statute of limitations against a citizen of the State for a personal injury action of the kind asserted herein would be three years from accrual (CPLR 214 [5]). Since Claimant's cause of action accrued on October 1, 1998, the Court is now barred from considering such relief.

Lastly, the Court notes that both parties have confined their arguments to the application of the Court of Claims Act, and the Court has limited its determination to the issues raised by the parties.

Based upon the above, it is

ORDERED, that Defendants' motion is granted, and the Claim is dismissed. Claimant's cross-motion is denied. The Clerk of the Court is hereby directed to close the file.

January 23, 2004
Buffalo, New York

Judge of the Court of Claims