New York State Court of Claims

New York State Court of Claims

CHEEK v. THE STATE OF NEW YORK, #2005-033-103, Claim No. None, Motion No. M-69222


Synopsis



Case Information

UID:
2005-033-103
Claimant(s):
In the Matter of the Claim of LEATHIA A. CHEEK, and ANDREE CHEEK, individually, and as the Parent, Guardian and Next of Kin of LEATHIA A. CHEEK
Claimant short name:
CHEEK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-69222
Cross-motion number(s):

Judge:
James J. Lack
Claimant's attorney:
Baker, Greenspan & Bernstein, Esqs.By: Theodore H. Rosenblatt, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 18, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion by Andree Cheek (hereinafter "movant"), as the parent and guardian of Leathia Cheek (hereinafter "proposed claimant"), to ask this Court to deem her Notice of Intention to be a claim pursuant to Court of Claims Act §10(8)[1].

According to the motion, on October 24, 2001, at approximately 6:21 a.m., proposed claimant was a pedestrian on Sunrise Highway (also known as State Route 27) in the vicinity of its intersection with County Line Road in either Nassau or Suffolk County, New York. Proposed claimant was struck by a vehicle driven by a private citizen. Movant alleges that the State of New York (hereinafter "State") was negligent in the operation, maintenance and control of the lighting in the area; in failing to make the area safe for pedestrians; failing to provide a proper walkway; failing to design and construct a sidewalk in the area; failing to provide proper lane markings; failing to provide proper signs; failing to warn of dangerous conditions and in failing to remedy any of the defective and dangerous conditions.

On January 16, 2002, movant served a Notice of Intention by personal service upon an Assistant Attorney General (Movant's Exhibit B). The State does not contest that it was served with the Notice of Intention, however, the State does challenge its adequacy.

Court of Claims Act §10(8)(a) states:
A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.

At the time of the service of the Notice of Intention, movant was not the legally appointed guardian of the proposed claimant. As of the day of the accident, proposed claimant was 42 years old. As a result of her injuries, proposed claimant lapsed into a coma and remains in that condition to this day. Movant is proposed claimant's mother. She was appointed proposed claimant's guardian on August 15, 2002. However, she served the Notice of Intention as the proposed guardian. The State makes no objection to the Notice of Intention on this ground.

The State opposes the motion on the ground that the Notice of Intention does not meet the requirements of Court of Claims Act §11.

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff'd 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. There must be sufficient detail to enable the State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, aff'd 98 AD2d 902). Pursuant to the Court of Claims Act, a claim must include the time when and place where the claim arose, the nature of the claim, items of damage or injuries sustained as well as the total sum claimed.

The Notice of Intention attached to the motion as Exhibit B consists of one page which truncates paragraph 3. This paragraph in the Notice of Intention is the time, place and manner in which the claim arose. That portion which is present is not adequate. The Notice of Intention lists a date but not the time when the accident occurred. The place listed is on Route 27, 50 feet west of the intersection with County Line Road. Route 27 is a major east/west road which runs along the south shore of Long Island, from one end to the other end. At various places, it has multiple lanes in each direction with turning lanes or it is a limited access highway with service roads. It is unknown if the proposed claimant was on the north side or the south side of Route 27, or if she was on a divider or some place within the travel lanes.

In addition, the Notice of Intention does not particularize the condition complained of. The Notice of Intention contains boilerplate language which covers an entire range of things that could be wrong with a roadway, sidewalk, lighting, signage or walkways. It covers design, maintenance, operation and construction of all of these areas. However, the Notice of Intention fails to specifically say what caused the proposed claimant's accident. The Notice of Intention fails to list the nature of the proposed claimant's injuries.

In its opposition, the State indicates that it was "only in receipt of the first page of the Notice of Claim as attached to the motion" (defendant's Affirmation ¶5). The Court reads this to mean that the one page that is movant's Exhibit B, is what movant served on January 16, 2002. The Court notes movant has not filed a reply to correct defendant's statement. The original document does not include all that is essential to constitute a claim, and thus, the Court is without jurisdiction (see Artale v State of New York, 140 AD2d 919; see also, Grande v State of New York, 160 Misc 2d 383).

While movant did not move for relief pursuant to Court of Claims Act §10(6), she includes a proposed claim in the event the Court did not find the Notice of Intention to be adequate. The Court finds the proposed claim insufficient in meeting the pleading requirements of Court of Claims Act §11. While the movant includes the time and date that the claim arose, the location is less sufficient than the one listed in the Notice of Intention. The location description is listed as "Sunrise Highway/Route 27 . . . at or near its intersection with County Line Road, County of Nassau and/or Suffolk, State of New York, Village of Massapequa and/or Village of Amityville . . ." (movant's Exhibit A ¶4). Now it is unclear which direction from County Line Road that the claim arose, in addition to the other problems concerning the description. The claim also lacks an ad damnum clause pursuant to Court of Claims Act §11.

Based on the foregoing, movant's motion is denied.


March 18, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on movant's motion: Notice of Motion for Leave to Treat Notice of Intention as a Claim dated October 7, 2004 and filed October 12, 2004; Affirmation in Support of Theodore H. Rosenblatt, Esq. with annexed Exhibits A-E dated October 8, 2004 and filed October 12, 2004; Affirmation in Opposition of Todd A. Schall, Esq. dated December 1, 2004 and filed December 3, 2004.