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
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
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).