New York State Court of Claims

New York State Court of Claims

VASS v. THE STATE OF NEW YORK, #2004-034-505, Claim No. 106875, Motion No. M-67873


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:
Defendant's attorney:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 3, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has moved to dismiss this action as untimely, and for failure to state a cause of action.

The Court has considered the following papers in connection with this motion:

1. Claim, verified October 30, 2002, filed November 4, 2002;

2. Answer, verified December 5, 2002, filed December 9, 2002;

3. Notice of Motion, dated January 8, 2004, filed January 12, 2004;

4. Affirmation of James L. Gelormini, Esq., affirmed January 8, 2004, with attached exhibit.

On consideration the Court will now grant Defendant's motion, noting that Claimant has failed to file and serve any papers in opposition thereto. Claimant is an inmate at Wyoming Correctional Facility. He has sought to recover for injuries allegedly sustained in a fall on an icy walkway at that facility on March 25, 2002, and also for malpractice in the medical care subsequently rendered by the prison hospital staff in their treatment of those injuries. On April 22, 2002, Claimant served a Notice of Intention to File a Claim upon the Attorney General (see Gelormini Affirmation, Exhibit 1), wherein he gave notice of both the premises liability and malpractice claims. He subsequently filed his Claim on November 4, 2002, and undisputedly served a copy of that pleading upon the Attorney General. Defendant asserted a number of affirmative defenses in its Answer, including challenges to the adequacy of the notice of intention's description of the location of the underlying incident, and by reason of that claimed defect, the timeliness of the later filing and service of the Claim itself.

In now seeking dismissal Defendant has relied in part upon the requirement within Court of Claims Act § 11 (b) that a notice of intention set forth the "place where such claim arose." A recitation of the location of an occurrence is one of the five substantive pleading conditions upon which the State has predicated its waiver of sovereign immunity, and a notice of intention that fails to conform with those requirements within Court of Claims Act § 11 (b) is jurisdictionally defective (see Lepkowski v State of New York, 1 NY3d 201 [failure to recite "time when" claim arose within Notice of Intention, as required under section 11 (b), was jurisdictional defect]). Although absolute exactness is not necessary, "the statute does require a statement made with sufficient definiteness to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances" (Cobin v State of New York, 234 AD2d 498, 499, lv dismissed 90 NY2d 925). The Court agrees that just as the description at issue in Cobin ("on the boardwalk at Jones Beach, County of Nassau, State of New York, in the East Quarter Circle, or its vicinity") lacked sufficient specificity, so also Claimant's description that the claim arose at "Wyoming Correctional Facility," and that he "[f]ell on icey [sic] walkway" must be deemed insufficient to comply with the statutory requirement. Further, since the notice of intention is jurisdictionally defective with respect to the premises liability cause of action, Claimant's time to file that part of his 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) (see Torres v State of New York, 233 AD2d 389). For that reason the first cause of action within the Claim filed November 4, 2002, must be deemed untimely.

With respect to the cause of action for medical malpractice Defendant has urged that the Claim must be dismissed in that it fails to recite that prison medical personnel deviated from accepted medical practice, and that the alleged deviation proximately caused Claimant's injuries. The failure to recite such allegations renders a pleading to recover for medical malpractice deficient (Parker v State of New York, 242 AD2d 785), and warranting dismissal under CPLR 3211 (a) (7).

Based upon the above it is hereby

ORDERED, that the first cause of action is dismissed as untimely, pursuant to CPLR 3211 (a) (5), and the second cause of action is dismissed for failure to state a cause of action, pursuant to CPLR 3211 (a) (7).

February 3, 2004
Buffalo, New York

Judge of the Court of Claims