The court read and considered the following papers on defendant's motion to
dismiss the claim for lack of jurisdiction: Notice of Motion, Affirmation and
Exhibit; Affirmation in Opposition and Exhibits; and the following papers on
claimant's cross-motion seeking permission to amend his claim: Notice of
Cross-Motion, Affirmation and Exhibits; Affirmation in Opposition. This claim,
filed on August 20, 2004, purports to seek damages for something that occurred
on May 24, 2004 at or near the 14th Street exit ramp on the FDR Drive in
Manhattan, allegedly the result of defendant's negligence and allegedly causing
damages to the claimant. Defendant moves to dismiss alleging that the claim
fails to comply with Court of Claims Act §11(b). Claimant cross moves for
permission to amend his claim
The claim contains no indication of what happened to the claimant on the FDR
Drive on the date in question. It alleges that the defendant was negligent in
its operation of the roadway, in general terms, and further alleges that some
unspecified "dangerous condition" existed for a sufficient period of time prior
to "the happening of the accident" so that defendant should have had notice.
That is the only mention of an accident in the claim.
As the Court of Appeals noted in Lepkowski v State of New York (1 NY3d
201): "section 11 (b) places five specific substantive conditions upon the
State's waiver of sovereign immunity by requiring the claim to specify (1) "the
nature of [the claim]"; (2) "the time when" it arose; (3) the "place where" it
arose; (4) "the items of damage or injuries claimed to have been sustained"; and
(5) "the total sum claimed." (id., 207; see also Heisler v State of
New York, 78 AD2d 767). What is required is sufficient information so that
the State can conduct a prompt investigation of the alleged facts and
circumstances so as to evaluate its potential liability. The instant claim
falls well short of reaching this standard, since it is impossible to even
ascertain what claimant alleges occurred. According to the claimant's counsel's
affirmations, claimant was injured in an accident when his motorcycle struck a
manhole cover. This vital piece of information does not appear in the claim.
Thus, the claim fails to adequately set forth its "nature" within the meaning of
Claimant requests, by way of cross-motion, that if the court finds that the
information contained in the claim is found to be insufficient, he be permitted
to amend the claim. When a claimant has failed to properly invoke the
jurisdiction of the court by failing to provide the information required by
section 11(b) such may not be cured by amendment of the claim (see e.g.
Grande v State of New York, 160 Misc 2d 383). Contrary to the assertion
of claimant's counsel, this court has never held that a "failure to include a
complete description of the location of the claim is a minor, non-jurisdictional
pleading error with no barrier to addressing that error by amendment"
(affirmation in support of cross-motion, par. 8), a complete mischaracterization
of the holding in Peralta v State of New York (Ct Cl, Scuccimarra, J.,
unreported decision and order dated February 10, 2004; UID No. 2004-030-902).
In that case, the court held that the description that was set forth in
claimant's notice of intention to file a claim, which had been served within the
90-day statutory period, should be taken into account when evaluating the
information contained in the claim. In that case, claimant did what the
claimant did not do here; i.e., provide defendant with the information required
by Court of Claims Act §11(b) within 90 days of accrual. Thus, the
requested, and granted, amendment of the claim in Peralta did not have
jurisdictional impact, precisely the opposite of the situation here.
Accordingly, the motion to dismiss for lack of jurisdiction must be, and hereby
is, granted, and the cross-motion is denied, without prejudice to claimant's
right to proceed pursuant to Court of Claims Act §10(6). The clerk is
directed to close the file.