New York State Court of Claims

New York State Court of Claims

MICHAEL v. THE STATE OF NEW YORK, #2005-016-037, Claim No. None, Motion No. M-68315


Motion pursuant to §10.8 of the Court of Claims Act for permission to treat notice of intention as claim was granted.

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):

Alan C. Marin
Claimant's attorney:
Harry Organek, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
May 18, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Edia Michael and Chenet Delva for an order permitting them to treat their previously served notice of intention as a claim, pursuant to §10.8 of the Court of Claims Act (the "Act"). This case arises from an alleged April 13, 2001 incident in which Edia Michael tripped and fell on a torn rug in an office of the Department of Motor Vehicles located at 2875 West 8th Street in Brooklyn. Section 10.8(a) of the Act provides that:
A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion 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; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.

It is undisputed that this motion was made prior to the expiration of the relevant statute of limitations and that claimants timely served a notice of intention on July 11, 2001. See exhibit A to claimants' moving papers. Nor does defendant argue that it would be prejudiced by the granting of this motion.

Defendant's sole opposition to the motion is its argument that claimants "have brought their suit in the wrong forum." See ¶2 of defendant's affirmation in opposition. The basis of such argument is that the State does not own the DMV premises, but rather leases them from an entity known as 2875 West Eighth Street Associates, L.P. According to defendant, the lease provides that the landlord shall make all necessary repairs and renovations and shall provide janitorial services and thus it is the landlord, and not the State, that is responsible for keeping the premises in a safe condition. However, as claimants point out, the lease in this case provides that the "Tenant shall take good care of the demised premises . . . Upon Tenant's request, Landlord shall, at Tenant's sole cost and expense, promptly make all repairs necessary to keep the premises in good order and condition . . . Tenant will give Landlord prompt notice of any defective condition in the premises for which Landlord may be responsible hereunder." See exhibit A to defendant's affirmation in opposition. Thus, the terms of the lease contemplate a situation under which the State could be liable.

Finally, claimants raise the issue that the notice of intention here does not include the total sum claimed as damages, pointing out that such has not been fatal to an application such as this, citing Barski v State of New York, 43 AD2d 767, 350 NYS2d 762 (3d Dept 1973) and McCabe v State of New York, 58 Misc 2d 823, 296 NYS2d 840 (Ct Cl 1969). See also, e.g., Smith v State of New York, Ct Cl December 10, 2002 (unreported, motion no. M-65528, Fitzpatrick, J., UID #2002-018-196[1]). Section 11.b of the Act specifically provides that a notice of intention need not state the sum claimed, and I find that such is not altered by either §10.8 of the Act, or by Lepkowski v State of New York, 1 NY3d 201, 770 NYS2d 696 (2003). Claimants have prepared a revised version of their notice of intention, which includes a statement of the sum claimed. See exhibit B to claimants' moving papers.

In view of the foregoing, having reviewed the parties' submissions,[2] IT IS ORDERED that motion no. M–68315 be granted. Within forty-five (45) days of the filing of this Decision and Order, claimants shall file with the Clerk of the Court the document annexed to their motion papers as exhibit B (which shall be verified and entitled "Claim"), together with a filing fee of $50 pursuant to §11-a of the Act. Within such forty-five (45) day period, claimants shall also serve defendant with the Claim, and defendant shall file and serve its answer in accordance with §206.7(a) of the Uniform Rules for the Court of Claims.

May 18, 2005
New York, New York

Judge of the Court of Claims

  1. [1]This and other decisions of the Court of Claims may be found on the Court's website:
  2. [2]The Court reviewed claimants' notice of motion with affirmation in support and exhibits A and B; defendant's affirmation in opposition with exhibit A; and claimants' reply affirmation.