The court read and considered the following papers on defendant's motion to
dismiss for lack of jurisdiction and claimant's cross-motion for an order
compelling disclosure: Notice of Motion, Affirmation and Exhibits; Notice of
Cross-Motion, Affirmation and Exhibit, Reply Affirmation.
This claim accrued on December 21, 2002 when claimant's ward, a blind, mentally
handicapped, non-speaking person who has been a ward of the State of New York
for many years, fell inside of defendant's premises (the Brooklyn Developmental
Disabilities Service Office at 888 Fountain Avenue in Brooklyn) and sustained an
ankle fracture requiring open reduction and internal fixation.
A notice of intention to file a claim was served on March 3, 2003, within 90
days of the incident. The claim was filed and served on December 9, 2004 and,
in an answer dated January 18, 2005, defendant raised a number of affirmative
defenses including, as relevant here, the allegations that: (1) the court lacks
jurisdiction due to claimant's failure to include an adequate description of the
location of the alleged incident, (2) the court lacks jurisdiction because it
fails to include "an adequate description of the condition alleged in the claim
as a cause of the incident," and (3) the court lacks jurisdiction because the
claim fails to state the amount of damages sought.
In response to the answer, claimant served and filed an amended claim which is
the same as the original claim except for the addition, at the end, of the
statement that claimant suffered damages in the amount of one million dollars.
Defendant interposed an answer to the amended claim that raised the same
jurisdictional defenses as the answer to the original claim, with the exception
of the defenses that arose from the absence of a monetary demand in that claim.
The answer to the amended claim does not refer to the absence of the monetary
demand from the original claim and raises no objection to the amendment of the
claim to include the monetary demand.
Defendant now moves to dismiss for lack of jurisdiction for the alleged failure
of the amended claim to comply with Court of Claims Act §11(b) which
requires that a claim state the time when and place where the claim accrued, the
nature of the claim, the items of damages and the amount demanded.
The amended claim alleges that claimant's ward was a resident of the
developmental center on December 21, 2002 and that, on that date, at the center,
she was caused to fall and suffer serious injuries, including a fractured ankle,
as the result of the negligence of defendant's employees in failing to properly
supervise Connie Williams and in maintaining their premises in a negligent
Defendant argues that "claimant does not particularize exactly where the fall
occurred, the time of the fall, and there is no description or explanation of
what happened to cause the claimant to fall. Additionally, there is no
statement of the total sum claimed" (Affirmation in Support of Motion, ¶6).
Defendant maintains that "[t]here is no indication of what happened, what caused
the claimant to fall or how the defendant was negligent" (id.
that "the State does not have the burden to investigate or assemble such
information that the claimant is obligated to allege" (id.
, ¶7) and
that the decision in Lepkowski v State of New York
(1 NY3d 201) is
"instructive on the question of how much particularization is required by the
statutory reference to the claim's ‘nature' " (id.
In response, claimant notes that her ward is blind, incompetent and unable to
speak and that the claim contains all of the information about the incident that
is presently known to claimant. Claimant also notes that she has been unable to
obtain the facility's records, despite providing the Attorney General with a
number of authorizations, and despite the court's direction, at a conference
held on May 27, 2005, that defendant was to provide copies of the relevant
records upon receipt of a duly-executed authorization. Such failure is the
basis of claimant's cross-motion seeking an order directing defendant to provide
copies of Connie Williams's medical records and accident report.
In response to the cross-motion, defense counsel states only that she
"forwarded claimant's authorization request for processing by the Office of
Mental Retardation and Developmental Disabilities" and that there is no basis
for the court to direct disclosure because the court lacks jurisdiction over the
claim. Apparently, counsel's contention is that forwarding the authorization to
her client exhausts her responsibility to provide disclosure, and further, that
the court is without jurisdiction because the claim does not contain information
that it allegedly must contain. Counsel does not address the fact that the
reason that the claim lacks such information is defendant's failure to provide
the information, which is in its exclusive control, to the claimant, nor does
counsel address claimant's contention that defendant's continuing refusal to
provide the records, notwithstanding its obligation under the law and
notwithstanding the court's specific direction to do so is "intentional and
designed to prohibit claimant from establishing a prima facie case" (Affirmation
in Support of Cross-Motion, ¶10).
, the Court of Appeals reaffirmed the
long-standing maxim that the "guiding principle" informing analysis of a claim
when it is challenged for alleged insufficiency is whether it provided
sufficient information to allow for an investigation of the relevant facts and
circumstances so the State can evaluate its potential liability (1 NY3d, 201,
207, citing Heisler v State of New York
, 78 AD2d 767
; see also Klos v State of New York
AD3d 1173; Rodriguez v State of New York
, 8 AD3d 647; Wharton v City
University of New York
, 287 AD2d 559). While Lepkowski
applicable law, the decision is not, as alleged by defendant, particularly
"instructive" with respect to how much "particularization" the statute requires
in this case. Lepkowski
involved claims by State employees who alleged
that they worked overtime and were not properly paid, but failed to state where
they worked, when they worked, how much they were paid, how much they should
have been paid and how much they were owed. The Court held that the claims did
not contain sufficient information to allow an investigation and were thus
jurisdictionally infirm. This claim involves a personal injury to an
incompetent person, blind and non-communicative, who was at all relevant times
under 24-hour State supervision. The parallels between the two factual
scenarios may be apparent to defendant; to the court, they are totally
The standard is whether defendant was afforded sufficient information to
conduct an investigation. The required evaluation necessarily proceeds on a
case-by-case basis. Here, with the context being an injury to an incompetent
person who resides at a State facility and is under 24-hour State supervision,
the information contained in the claim was clearly sufficient to allow a
complete investigation. The failure to specify "exactly where" in the facility
claimant fell or precisely "what caused the claimant to fall" did not affect, at
all, defendant's ability to investigate. Defense counsel's unsupported and
conclusory statement that the amended claim "fails to set forth specific facts
that would enable the State to investigate the manner in which the injuries
allegedly occurred" (Affirmation in Support of Motion, ¶8) is not supported
by an affidavit from someone with knowledge of the relevant facts and
circumstances explaining how and why the information contained in the amended
claim was insufficient.
Moreover, the contention that the court lacks jurisdiction because claimant did
not include in the claim information that claimant can only obtain by review of
defendant's records, when defendant has refused to provide those records despite
having been provided with proper authorizations and despite having been directed
to provide the records by the court is, in the context of this case,
inappropriate and offensive.
With respect to the lack of a monetary demand in the original claim, it is
curious that defendant raised no objection when claimant addressed that issue by
interposing an amended claim containing such a demand. Defendant's posture, in
its answer to the amended claim, was that any problem had been cured. Now,
defendant attempts to resurrect the defense by way of motion, impliedly
contending that such defense may be raised at any time, even under circumstances
that would lead a claimant to think that the issue had been removed from the
claim (cf. Caprio v State of New York, Ct Cl, Collins, J., decision and
order dated May 28, 2003, UID No. 2003-015-323, where the court estopped
defendant from raising the defense of lack of verification of the claim after it
had stipulated to withdraw the defense and later moved to dismiss on the same
The original claim is no longer before the court. It has been superseded by
the amended claim, to which defendant raised no objection. The amended claim
contains a demand for relief and thus complies with the statute in that respect.
In any event, this court has already held that the absence of a demand for
monetary relief does not implicate the court's jurisdiction but rather is a
pleading deficiency that may be cured by amendment of the claim, exactly as
occurred here (Legall v State of New York, ___ Misc 3d ___ , 803 NYS2d
386, 2005 NY Slip Op. 25471; see also Stewart v State of New York, Ct Cl,
Patti, J., decision and order dated September 24, 2004, UID No. 2004-013-047;
cf. Michael v State of New York, Ct Cl, Marin, J., decision and order
dated May 18, 2005, UID No. 2005-016-037; Beckley-Kamara v State of New
York, Ct Cl, Marin, J., decision and order dated November 18, 2005; UID No.
2005-016-060; Hernkind v State of New York, Ct Cl, Mignano, J., decision
and order dated September 29, 2005, Motion No. M-70502).
Defendant, it hardly seems necessary to point out, does not claim any prejudice
arising from its failure to be apprised of claimant's one million dollar
evaluation of the claim in December 2004, when the original claim was served,
rather than in January 2005, when the amended claim was served.
Accordingly, the court finds that the instant claim meets the standard
articulated in, e.g., Lepkowski and Heisler and defendant's
motion to dismiss for lack of jurisdiction is denied. Claimant's cross-motion
to compel disclosure is granted and defendant is directed to provide claimant
with copies of Connie Williams's records from December 20, 2002 to the present
date within 30 days of the filing date of this decision and order. The court
points out that forwarding an authorization to the agency does not fulfill
counsel's obligation; transmitting copies of the records to claimant is what is
required. Defendant is directed to advise the court, by letter, when the
records are sent to claimant. If such is not done within 30 days of the filing
date hereof, defendant is to provide an affidavit from someone at OMRDD with
knowledge of the situation explaining, with particularity, exactly what the