New York State Court of Claims

New York State Court of Claims

PINO v. THE STATE OF NEW YORK, #2005-016-067, Claim No. 110231, Motion No. M-70211


Synopsis


Motion to dismiss claim for failure to state sum claimed and items of damage or injuries was denied, as claim did in fact state such items.

Case Information

UID:
2005-016-067
Claimant(s):
EDWARD PINO
Claimant short name:
PINO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110231
Motion number(s):
M-70211
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Dansker & Aspromonte AssociatesBy: Jonathan Heller, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Diana Dykes, Esq., AAG
Third-party defendant's attorney:

Signature date:
November 14, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


This is defendant's motion to dismiss on the ground that Edward Pino's claim fails to comply with §11.b of the Court of Claims Act. Specifically, defendant argues that the claim does not state: (1) the sum claimed; or (2) the items of damage or injuries sustained. Mr. Pino alleges that because of defendant's negligence, he fell from his bicycle when he struck a "bollard" base from which the bollard was missing. The accident occurred on the bicycle path by the Westside Highway at 58th Street in Manhattan. Section 11.b of the Act provides in relevant part that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed." In Lepkowski v State of New York, 1 NY3d 201, 770 NYS2d 696 (2003), the Court of Appeals upheld the dismissal of a claim that did not contain all such five items.

As set forth above, defendant contends that the claim in this case fails to state the total sum claimed and the items of damage or injuries sustained. Such argument is without merit. As to total sum claimed, Pino specifically alleges that he "has been damaged in the sum of . . . $5,000,000.00 . . ." Claim, ¶14. As to the items of damage or injuries sustained, he alleges that:
he was caused to fall from his bicycle and be violently precipitated to the ground . . . [and] . . . [t]hat as a result . . . Claimant . . . was rendered sick, sore, lame and disabled and was caused to and did sustain severe, protracted personal injuries which . . . are upon information and belief permanent, and that this Claimant has as a result thereof been confined to bed and home, has required medical attention, and has been prevented and will be prevented for some time to come from pursuing his usual and ordinary activities and has required the expenditure of sums of money for hospital and medical aid and attention and will in the future be required to expend future sum[s] for such medical aid and attention . . .


Claim, ¶¶ 8 and 11. Such allegations are compliant with §11.b of the Act.

For the foregoing reasons, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-70211 be denied.


November 14, 2005
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The Court reviewed: defendant's notice of motion with affirmation in support and exhibits A through C; and claimant's affirmation in opposition with exhibits A through C.