On November 16, 2005, the following papers were read on motion by Claimant for
an order striking the Defendant's affirmative defense that the Notice of
Intention was untimely served, and on Defendant's cross-motion to dismiss the
Notice of Motion and Papers Attached
Notice of Cross-Motion, Affirmation and Exhibits Attached
Filed Papers: Claim; Answer; Defendant's Answers to Interrogatories dated
September 22, 2005
Upon the foregoing papers, the cross-motion is denied and the motion is granted
to the extent noted.
In Motion No. M-70782, the Claimant moves to strike the affirmative defenses of
the Defendant as they pertain to her notice of intention to file a claim (NI).
While Claimant suggests that the allegations in the affirmative defense(s) are
that the notice of intention was untimely, the Defendant's cross-motion to
dismiss clarifies its position. The Defendant asserts that the NI fails to
comply with the requirements of Court of Claims Act §11(b) that it contain
the time when and place where the claim arose, and since the claim was not
served within 90 days of the accrual of the cause of action, the claim cannot
rely upon the NI to extend Claimant's time to file (Court of Claims Act
§10) and is thus untimely. Moreover, says the State, the claim itself
does not satisfy the time when and place where requirements of Section 11(b) of
the Court of Claims Act. The State also contends that the claim fails to state
a cause of action and that no negligent or intentional conduct is alleged.
Hence, says the State, the claim must be dismissed.
The cross-motion is denied in its entirety.
First I consider this claim, filed by a pro se inmate, which recites that her
address at the time of filing the claim was the Albion Correctional Facility.
It alleges that:
3. The time and place where such claim arose and the nature of this claim is as
a. On or about September 28, 2004, after claimant finished using the bathroom,
claimant slipped on water that was on the bathroom because of the leaking
toilets, and grabbed on the bathroom door to prevent falling. However, as
claimant was falling, claimant's right hand ring finger got stuck in the
bathroom door. Claimant did not fall due to Claimant's finger being stuck in
the bathroom door. However, claimant severely hurt claimant's finger.
b. Due to the leaking toilets, which created the wet bathroom floor, claimant
suffered from a swollen, red, bruised, disfigured finger....
e. It was the duty of the defendant to follow a certain standard of conduct for
the protection of unreasonable risks. Defendant was aware of the leaking
toilets in dormitory N-2 prior to claimant's injury and after claimant's injury.
Work orders to maintenance were filled out for the leaking toilets. The toilets
in dormitory N-2 are still leaking.
In first considering the adequacy and sufficiency of the claim itself, I wonder
just what issues the Defendant is raising. The information quoted above from
the claim provides allegations of the date and place (the N-2 dormitory
toilets), that the Defendant was on notice of the leaking toilets and that they
were still leaking, that Claimant slipped on water from the leaking toilets and
was injured as a result of such slip. In its cross-motion and its fifth
affirmative defense, Defendant contends that the claim fails to state a cause of
action as no negligent or intentional conduct is asserted that would give rise
to a claim in tort, but I note that the claim asserts that the Defendant was
aware of leaking toilets in the N-2 dormitory prior to Claimant's injury, that
work orders were filled out, and that, at least at the time of the filing of the
claim, the toilets were still leaking. Even without allowing for Claimant's pro
se status and perhaps a more expansive view of the pleadings in light thereof,
it appears to me that the allegations are that the State was on notice of a
dangerous condition, that it either negligently attempted or negligently failed
to remedy said dangerous condition and that Claimant was injured as a result of
such negligence. Whether Claimant could prove such allegations remains to be
seen, but for pleadings purposes, a cause of action is stated.
While it may be vaguely supportable and necessary to preserve for the record,
the State's suggestion that the notice of intention and the claim fail to
satisfy the "time when and place where" requirements of Section 11(b) of the
Court of Claims Act (see the third and sixth affirmative defenses)
borders on the frivolous. Defendant focuses on two issues: place and time. As
to place, the claim recites the facility at which Claimant was incarcerated and
the bathroom in the N-2 dormitory. To the extent that Defendant relies upon
Santiago v State of New York (Ct Cl, Claim No. 107166, Motion No.
M-69030, Nov. 16, 2004, Hudson, J.) (Exhibit B to Defendant's cross-motion), it
is misplaced. In Santiago, the Court noted that the claim failed to
identify the place within the prison where the alleged assault took place. At
the very least, the instant claim recites the specific dormitory and specifies
the bathroom. To the extent that Defendant suggests that the claim, and for
that matter the NI, fail to identify the correctional facility where the alleged
incident took place, such argument strikes me as vacuous. The incident
apparently did occur at the only correctional facility recited within the
verified NI and the claim, the facility at which Claimant resided when she
prepared both documents. Had the incident taken place at another facility, from
which Claimant had been transferred between the date of the incident and the
dates of the NI and the claim, then there would be a cogent validity to the
The Defendant's next ground for dismissal is likewise flawed. Defendant argues
that "the incident in question did not take place on September 27, 2004 at all,
but rather on a different day" (¶15, affirmation in support of
cross-motion). Defendant then references its answers to interrogatories dated
September 22, 2005, and Claimant's notice of interrogatories dated October 5,
2005. This is somewhat stupefying to me. First and foremost, the claim and
the NI both allege that the incident took place "[o]n or about
28, 2004" (emphasis supplied). In its answer to interrogatory No. 2, the
Defendant denies that Claimant was injured on September 28, 2004, and in
response to interrogatory No. 3, answers that "a Report of Inmate Injury was
completed concerning an injury on September 27,
Given that the claim itself alleges
"on or about
September 28, 2004," I am hard pressed to find the claim or
the NI inadequate as to the time when this incident allegedly occurred. While
there obviously will be issues as to if and when the Defendant was put on notice
of the leaking toilets and whether it was given an adequate period of time to
address such report, the date of Claimant's purported incident is fully
documented as Defendant noted in its answer to interrogatory No. 3. The
Defendant's argument here has little or nothing to do with jurisdictional
infirmities, but rather with questions of proof.
Now addressing the sufficiency of the NI, my discussion above with respect to
the time when the alleged incident took place resolves the question of the date.
But going further, if Defendant is implying that the NI, and for that matter the
claim, are deficient (to wit, fail the "time when" test) because they lack the
hour of the incident, such argument is rejected. Defendant provides no legal
support for dismissal of a claim because of a pleading infirmity for omitting
the hour or minute of a claim's accrual.
As to the purported deficiency in naming the place where the claim arose, I
have already found that Claimant sufficiently named the facility where she
resided, and thus the facility where she alleged the incident to have occurred.
In the NI she also specified that the incident took place in the bathroom, at
the bathroom door, but does not specify the N-2 dormitory.
I have previously addressed questions regarding notices of intention, noting
The purpose of a notice of intention is to give the State prompt notice of an
occurrence and an opportunity to investigate the facts to determine potential
liability (Heisler v State of New York, 78 AD2d 767), and consequently,
it must identify the location of the accident sufficiently to enable the
Defendant to conduct a meaningful investigation (Grande v State of New
York, 160 Misc 2d 383). It is true that the notice of intention is not a
pleading and therefore need not state all of the elements of a cause of action
or list items of damages (Bensen v State of New York, 88 Misc 2d 1035;
Barrett v State of New York, 85 Misc 2d 456), and it is not to be
scrutinized under the standards applicable to a pleading (Sega v State of New
York, 246 AD2d 753). Still, to achieve its central purpose, the document
must apprise the State of the general nature of the claim; contain some
meaningful reference to the factual basis of the claim so as to permit
investigation; and identify the defect or wrongful actions by State officials
that will allegedly give rise to liability (Schwartzberg v State of New
York, 121 Misc 2d 1095, 1099-1100, affd 98 AD2d 902;
Williams v State of New York, 77 Misc 2d 396).
(Allen v State of New York
, Ct Cl, UID #2001-013-032, Claim No. 103513,
Motion Nos. M-63467 and CM-63604, Dec. 31,
More recently, in Klos v State of New York (19 AD3d 1173), where a
notice of intention prepared by a pro se inmate under the care and custody of
Defendant was found to be sufficiently specific to provide Defendant with timely
notice to investigate the claim and not to be scrutinized under the standards
applicable to a pleading (Sega v State of New York, 246 AD2d 753), the
Appellate Division Fourth Department affirmed, observing that:
The notice of intention specified the date and general location of the incident
as well as the manner in which claimant was injured, and thus we conclude that
the notice set forth the requisite factual basis for defendant's alleged
liability (see Rhodes v State of New York, 245 AD2d 791, 792
). The general manner in which defendant was alleged to have been
negligent could be inferred from the foregoing description (see
Rhodes, 245 AD2d at 792; Ferrugia v State of New York, 237 AD2d
858, 859 ), thereby enabling defendant to conduct a prompt investigation
of the claim and to ascertain its liability, if any (see
Rodriguez, 8 AD3d at 648; Sinski, 265 AD2d 319 ;
Rhodes, 245 AD2d at 792; Ferrugia, 237 AD2d at 859; Epps v
State of New York, 199 AD2d 914 ).
(Klos v State of New York, 19 AD3d 1173, 1174.)
Inmates are under the complete care, custody and control of the Defendant.
Their actions are constantly monitored, and the Department of Correctional
Services maintains an extensive paper record of incidents, injuries, medical
care, etc. The allegations of the notice of intention here enabled "defendant
to conduct a prompt investigation of the claim and to ascertain its liability,
if any [citations omitted]" (id. at 1174).
Accordingly, the cross-motion to dismiss is denied. While the Claimant's
motion sought to strike the affirmative defense that the notice of intention was
untimely, based upon the decision above, it is granted to the extent that the
Defendant's Third, Fifth and Sixth affirmative defenses are stricken.