New York State Court of Claims

New York State Court of Claims

ANDINO v. THE STATE OF NEW YORK, #2005-030-904, Claim No. 109745, Motion Nos. M-69158, CM-69446


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:
Misiano Shulman Capetola & Kessler, LLPby Steven Shulman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 9, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 the statute.

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.

February 9, 2005
White Plains, New York

Judge of the Court of Claims