New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2006-009-079, Claim No. 112489, Motion No. M-72095


Defendant’s motion to dismiss based upon an alleged failure of claimant to comply with the specificity requirement of 11(b) was denied.

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:
Schneider, Kaufman & Sherman, P.C.
Brian J. Isaac, Esq., and
Kenneth J. Gorman, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney General,Of Counsel.
Third-party defendant’s attorney:

Signature date:
December 22, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order dismissing the claim based upon a failure to state a cause of action. Defendant contends that the allegations set forth in this claim fail to comply with the specificity requirement of § 11(b) of the Court of Claims Act.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

Memorandum of Law 3

Affirmation in Opposition 4

In this claim, claimant seeks damages based upon allegations of medical malpractice, contending that this malpractice occurred when he was incarcerated at Cape Vincent and Arthur Kill Correctional Facilities between 2002 and 2005. Specifically, claimant alleges that the State physicians and medical staff at these facilities failed to diagnose his medical condition, and refused to allow claimant to receive proper treatment for this condition, and that as a result claimant now suffers from terminal metastatic adenocarcinoma of the stomach.

Defendant now seeks an order dismissing the claim, contending that this claim provides the defendant with no indication of when, where, or how the claimant was injured, and fails to allege the acts or omissions of the State in sufficient detail.

Court of Claims Act § 11(b) requires that a claim set forth “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.” When evaluating a claim against an assertion, as here, that it fails to comply with these requirements of § 11(b), the guiding principle is always whether the claim provides sufficient information to allow for a prompt investigation by the defendant aimed at ascertaining its potential liability (Lepkowski v State of New York, 1 NY3d 201; Heisler v State of New York, 78 AD2d 767).

When a defendant contends that a claim falls short of this standard, it is incumbent upon the defendant to demonstrate that it was unable to conduct an investigation based upon the information that was provided (Cannon v State of New York, 163 Misc 2d 623; Partridge v State of New York, Ct Cl, Patti, J., Claim No. 90710, Motion No. M-62089; Kerr v State of New York, Ct Cl, Read, P.J., Claim No. 105574, Motion No. M-65237; Turpin v State of New York, Ct Cl, Read, P.J., Claim No. 92485, Motion No. M-58816).

While it is true that the defendant need not go beyond the contents of a claim in order to obtain sufficient information to conduct its investigation, it is equally true that “the substantive information in a claim or notice of intention does not have to provide all of the information the State may need in order to assess its potential liability. Rather, there must be enough specific details about the time, location, and nature of the claim to enable the State to easily conduct an investigation and, through such investigation, assess its risk of being found liable” (Gonzalez v State of New York, Ct Cl, Sise, P.J., Decision and Order dated April 12, 2006 [UID No. 2006-028-542).[1]

This claim contains allegations that “commencing in about 2002 and continuing through 2005", medical malpractice occurred at “Cape Vincent and Arthur Kill Correctional Facilities”. The claim contains a litany of “acts or omissions of the defendant” which defendant contends provide no information as to any specific acts or omissions particular to the claimant herein.

In Epps v State of New York (199 AD2d 914 [1993]), the Third Department had occasion to address the same issues presented by the defendant on this motion. The claimant in Epps was also an inmate incarcerated in the State correctional system, and the claim was based upon the alleged failure of the State’s agents and employees to diagnose and treat claimant’s medical condition over a period of time. In Epps, the Court held: “[w]here, as here, the alleged negligence was ongoing, and assertedly involved omissions rather than affirmative acts, the recitation in the notice of the range of dates, along with the . . . correctional facilities where claimant was treated, is sufficiently specific to permit the State to investigate the claim.” Although the Epps court was concerned with the degree of specificity required in a notice of intention the issue of whether sufficient notice has been provided within the context of § 11(b) is identical for both claims and notices of intention.

Accordingly, since claimant has provided a range of dates together with the names of the correctional facilities where claimant was treated, and has also alleged that acts or omissions of the defendant have caused claimant to suffer from terminal cancer of the stomach, the Court must find, as in Epps, that claimant has satisfied the specificity requirements of § 11(b). While the Court has the same concerns as raised by the defendant with respect to the “boiler plate” language describing those acts or omissions, the Court finds that claimant has provided sufficient information in his claim to enable the State to conduct a prompt investigation, the “guiding principle” of any § 11(b) analysis (Lepkowski v State of New York, supra at 207).

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-72095 is hereby DENIED.

December 22, 2006
Syracuse, New York

Judge of the Court of Claims

[1]. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at