Defendant brings a motion to dismiss the claim for lack of jurisdiction and
failure to state
a cause of action. It is Defendant's position that the claim fails to set forth
the information required by Court of Claims Act § 11(b) and that it fails
to state a cognizable cause of action. Claimant opposes the motion.
The claim alleges that at Gouverneur Correctional Facility:
...I was seen by the podiaty [sic] in April of 2005 for my right foot, which
were infection [sic] in my right toe the one next to the little toe.
I am a diabete, [sic] and I were [sic] told by the [sic] Dr. Pellelier that I
medical boot and sneakers, if set the boot [sic] I also will need the
to go along with my medical boot which I heard that the State don't
gave-out [sic] any more, but I would just like to get the medical boot.
the boot will be al [sic] right with me.
This is a claim, just like the one Claimant filed back in November 2,
Defendant argues that the claim fails to set forth the nature of the claim and
the alleged negligence of the State and in fact fails to set forth a cause of
action at all.
Court of Claims Act § 11(b) requires that a claim shall (1) state the time
when the claim arose; (2) the place where the claim arose; (3) the nature of the
claim; (4) the items of damage or injuries alleged to have been sustained; and
(5) the total sum claimed. The burden is on the claimant to provide this
minimal information, and the State has no obligation to "ferret out or assemble"
the required details (see Lepkowski v State of New York 1 NY3d 201, 208).
The Court must assess whether the claim contains "a statement made with
sufficient definiteness to enable the State to investigate the claim promptly
and to ascertain its liability under the circumstances" (Cobin v State of New
York, 234 AD2d 498, lv dismissed 90 NY2d 925). The statement must be
specific enough so as not to "mislead, deceive or prejudice the rights of the
State;" "[c]onclusory or general allegations of negligence that fail to adduce
the manner in which the claimant was injured and how the State was negligent" do
not meet the pleading requirements (Heisler v State of New York, 78 AD2d
767, 767-768). Yet, absolute exactness is also not required (Wharton v City
University of New York, 287 AD2d 559, 560).
After reviewing the claim this pro se
litigant completed on a preprinted
although it is clearly less than
perfectly articulated, the Court finds that it adequately satisfies the
requirements of § 11(b) (see Hughes v Rowe,
449 US 5, 9-10). It
specifies generally the nature of the claim, that is, Claimant is a diabetic who
was told by Dr. Pellelier at Gouverneur Correctional Facility that he needed a
medical boot and sneakers which the State won't provide, but he feels he at
least needs the medical boot, and he has been damaged in the amount of $150,000
(compare Andino v State of New York,
Ct Cl, Scuccimarra, J., signed
February 9, 2005, Claim No. 109745, Motion Nos. M-69158, CM-69446, UID#
2005-030-904 [claim contained no indication of what happened to claimant on the
roadway in question, nor does it specify the alleged dangerous condition];
Brown v State of New York,
Ct Cl, Fitzpatrick, J., signed October 31,
2002, Claim No.106212, Motion Nos. M-65428, CM-65508, UID# 2002-018-176
[claimant alleged he fell in the shower at a correctional facility, but there
was no indication of what the State did wrong]). Given the information
contained in the claim, the State should be able to investigate and assess its
potential liability. Section 11(b) requires certain information be provided
which the claim, minimally, does reflect.
Accordingly, Defendant's motion to dismiss is DENIED.
The Court has considered the following documents in deciding this motion:
Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney
General, in support, with exhibits attached thereto............2
Affidavit of Eddie James Lee, Sr., in opposition, sworn to