New York State Court of Claims

New York State Court of Claims

MENDELSOHN v. CITY UNIVERSITY OF NEW YORK, #2005-030-937, Claim No. 110237, Motion Nos. M-70544, CM-70627


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:
Rothman, Schneider, Soloway & Stern, Robert A. Soloway, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Diana Dykes, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 5, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on claimant's motion to strike affirmative defenses and defendant's cross-motion for an order dismissing the claim: Notice of Motion, Affirmation and Exhibits; Notice of Cross-Motion, Affirmation and Exhibits; Reply Affirmation.

Claimant allegedly sustained serious injuries, including multiple fractures, when she slipped and fell on a slippery floor at the CUNY Graduate Center on July 19, 2004. Claimant's notice of intention to file a claim was served on October 15, 2004 and the instant claim was filed on December 17, 2004.

Defendant's answer contains a number of affirmative defenses, three of which are the subject of claimant's motion to strike and defendant's cross-motion to dismiss the claim:

In the fourth affirmative defense, defendant alleges that the court lacks jurisdiction over the claim because it fails to include an "adequate description of the location of the incident" or an "adequate description of the manner in which the incident occurred." In the fifth affirmative defense, defendant alleges that the court lacks jurisdiction because the notice of intention did not adequately describe the location of the incident or the manner in which it occurred. The seventh affirmative defense, which alleged that claimant failed to serve the notice of intention upon CUNY, was withdrawn by defendant after claimant made the motion.

Court of Claims Act §11(b) provides that a "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" and that a " notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."

In Lepkowski v State of New York (1 NY3d 201, 207), the Court of Appeals reaffirmed the long-standing rule that the "guiding principle" governing analysis of the language of a claim or notice of intention is whether sufficient information was provided to enable the state to investigate the relevant facts and circumstances so as to evaluate its potential liability (see also Klos v State of New York, 19 AD3d 1173; Rodriguez v State of New York, 8 AD3d 647; Wharton v City University of New York, 287 AD2d 559; Heisler v State of New York, 78 AD2d 767).

Here, both the notice of intention and the claim alleged that the incident occurred on July 19, 2004 at approximately 8:00 a.m. at the CUNY Graduate Center, 365 Fifth Avenue in Manhattan, when claimant slipped and fell when she entered the main entrance of the building, as the result of a slick and slippery condition of the floor.

Defendant's speculation that claimant's identification of the location is somehow "unclear" and that she did not provide sufficient "particularization" of the location is without any basis in fact or law. Nothing is offered in support of the contention that the information provided by claimant was somehow insufficient to enable an investigation or confusing in any way. Defendant's contention that the claim and notice of intention failed to adequately identify the "place where" the claim accrued is rejected.

The argument with respect to the allegedly insufficient "particularization" of defendant's alleged wrongdoing (presumably a reference to the statutory requirement that a claim or notice of intention set forth its "nature") is that the reference to a "slick and slippery condition" could refer to "a number of conditions that could cause a fall and states no particular facts to indicate what [is] the State's basis for the liability being alleged (Dykes Affirmation, ¶ 5).

In Bennett v New York City Transit Authority (4 AD3d 265, affd 3 NY3d 745), a case with a factual and legal[1] background strikingly similar to the claim before the court, the Appellate Division, First Department held:
"In this case, the notice of claim properly identified plaintiff as the claimant, stated when and where the accident occurred and described the defective condition that allegedly caused her to slip and fall as ‘an unreasonably slippery and slick wet floor.' This information was certainly sufficient to enable the defendant Transit Authority to investigate and evaluate plaintiff's claim. Plaintiff was not required to identify the source of the water that was alleged to be on the floor, as that was well within defendant's investigatory abilities" (id., 266-267).
In affirming, the Court of Appeals, held that the "notice of claim provided information sufficient to apprise defendant New York City Transit Authority of the place, time and nature of her accident in order to ‘investigate, collect evidence and evaluate the merit of [the] claim' " (Bennett v New York City Transit Authority, 3 NY3d 745, citing Brown v City of New York, supra, 95 NY2d 389, 392).

Thus, the Court of Appeals has been consistent in its interpretation of Court of Claims Act §11(b) and General Municipal Law §50-e – the requirements of which are, for the purposes of this discussion, essentially identical. The language of the Brown and Bennett decisions is indistinguishable from that of the Lepkowski and Heisler[2] decisions. The import of all of them is that the purpose of a claim or notice of intention (pursuant to the Court of Claims Act) or a notice of claim (pursuant to the General Municipal Law) is to put the state or municipal entity on prompt notice of the possibility of an action against it and to provide sufficient information to enable an investigation of the relevant facts and circumstances. That is the standard against which the notice of intention and claim herein must be judged. Clearly, both documents were sufficient. Defendant seems to contend that a claimant must conduct a thorough investigation and provide the defendant, in the notice of intention or claim, with the results. Such is not the law.

Accordingly, the claimant's motion is granted and the defendant's cross-motion is denied.

December 5, 2005
White Plains, New York

Judge of the Court of Claims

[1]Bennett arose under the General Municipal Law and concerned the adequacy of a notice of claim, which is required to set forth "(1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable" (General Municipal Law§50-e[2]. In Brown v City of New York (95 NY2d 389, 393) the Court of Appeals addressed the standard to be applied when a notice of claim is challenged as not containing sufficient information: "[t]he test of the sufficiency of a Notice of Claim is merely ‘whether it includes information sufficient to enable the city to investigate'(see, O'Brien v City of Syracuse, 54 NY2d 353, 358). ‘Nothing more may be required' (Schwartz v City of New York, supra, 250 NY, at 335). Thus, in determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant's description municipal authorities can locate the place, fix the time and understand the nature of the accident (Purdy v City of New York, supra, 193 NY, at 524; Widger v Central School Dist. No. 1, 18 NY2d 646, 648)."

[2]"What is required is not absolute exactness, but simply a
statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required." (
Heisler v State of New York,
78 AD2d 767). The Lepkowski court cited this language as the "guiding principle informing section 11(b)" (Lepkowski v State of New York, 1 NY3d 201, 207).