(6) Reply Affirmation of Assistant Attorney General Diana Dykes, Esq., dated
September 23, 2005 and filed on September 27, 2005, with Exhibit "A"
The Claim herein seeks damages for personal injuries resulting from a motor
vehicle collision between an auto of the Claimant, Alie Bereteh, and one driven
by Terrance Revella, an employee of the New York State Department of
Environmental Conservation. The Claimant, Mr. Bereteh, alleges that the driver
of the State vehicle disregarded a stop sign and collided with his vehicle
(Notice of Motion, Exhibit "C").
In seeking summary judgment, the attorney for the Claimant argues that the
Defendant's driver violated VTL §1142(a) and that the Claimant is entitled
to summary judgment (Affirmation of Regis A. Gallet, Esq., pp 2-3).
In opposition to the Motion, the Defendant submitted the Affidavit of Terrance
Revella, the driver of the State's vehicle, who states that he had stopped at
the stop sign, proceeded through the intersection and was then hit by the
Claimant's vehicle, which had crossed a solid double yellow line (Reply, Exhibit
The rule governing motions for summary judgment is well established that the
movant must make a prima facie showing of entitlement to judgment as a matter of
law, eliminating any material issues of fact from the case (Winegrad v New
York University Medical Center, 64 NY2d 851, 853). The function of the
Court on such a motion is to determine if a material issue of fact exists, after
examining the proof in a light most favorable to the opposing party
(Iwaszkiewicz v Callanan Indus., Inc., 258 AD2d 776). If a material
issue of fact is found, the Court should deny the motion (Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395).
After reviewing the papers submitted in support of the motion and in opposition
to it, the Court finds a material issue of fact exists as to causation.
Accordingly, the Claimant's Motion for Summary Judgment is denied.
In cross-moving for dismissal, the State submits a two-prong assault on the
Claim: (1) it fails to comply with Court of Claims Act §11, in that it
fails to state the manner in which the Defendant was negligent, as well as
failing to contain a specific description of the site of the accident
(Affirmation of Diana Dykes, Esq. in Support of Cross-Motion and in Opposition
to Claimant's Motion, pp 3-4 [unpaginated]); (2) that the Claimant has failed to
allege that he suffered a "serious injury" as required by Rule 3016(g) of the
Civil Practice Law and Rules (Affirmation of Diana Dykes, Esq. in Support of the
Cross-Motion and in Opposition to Claimant's Motion, pp 5-6
The Claimant contends that he has complied with the requirements of Section 11
in that he has stated the place where the accident occurred and the nature of
The purpose of Section 11 of the Court of Claims Act is to provide a
sufficiently detailed description of the particulars of the Claim to enable the
State to investigate and promptly ascertain the existence and extent of its
liability (Sinski v State of New York, 265 AD2d 319). What is not
required is absolute exactness, but rather a simple statement that will permit
the State to assess its liability and prepare a defense (Heisler v State of
New York, 78 AD2d 767; Harper v State of New York, 34 AD2d
Here the Claim indicates that the accident occurred on October 15, 2004 at
approximately 9:10 a.m. at West Thames Street and Battery Place. It further
states the driver of the other vehicle was Terrance Revella, and that the
vehicle had a New York license plate, #CSS 2963, and was driven in a negligent
and reckless manner (Exhibit "A" annexed to Notice of Motion).
The Court finds that the statements are sufficient to give the State an
opportunity to investigate the accident and the manner in which it
Further, there exists an issue of
fact as to how the accident occurred. The State's reference to the Motor
Vehicle Accident Report (Exhibit "C" annexed to the Notice of Cross-Motion) is
not controlling on this issue since the maker of the report, P.O. J. Stewart,
based the report upon the accident description given by Mr. Revella, its own
driver. The factual sequence of the accident is described in a different manner
by the Claimant.
Based upon the above, the branch of the Defendant's Cross-Motion seeking to
dismiss for failure to comply with §11 of the Court of Claims Act is
On the remaining issue, whether the Claim must be dismissed because the
Claimant has failed to recite the talismanic phrase "serious injury", the Court
chooses substance over form. The Claim provides that the Claimant suffered
multiple bodily injuries which included injuries to his head, neck, back and
knees, and that these injuries caused him to be absent from work. He also
alleges that property damage to him was approximately $20,000 (Exhibit "A"
annexed to the Notice of Motion). The State, in its papers, states
conclusively: "[t]hese non-specifically alleged injuries do not constitute
serious disability or impairment under the law" (Affirmation in Support of
Cross-Motion and in opposition to Claimant's Motion, p 6 [unpaginated]). The
papers do not challenge that these injuries occurred or that the damage to the
car was not as alleged. The sole basis appears to be that the Claimant did not
recite the statutory phrase.
Although the Court would have preferred to have had the phrase "serious injury"
or have had a more complete description of the injuries contained within the
Claim, it finds that the description provided falls within the parameter of
serious personal injury. This conclusion has been further bolstered by the
Affidavit of Claimant, wherein he alleges that he has suffered a "serious
personal injury" which he contends is permanent (Exhibit "C" annexed to Notice
of Motion) Sanders v Rickard, 51 AD2d 260; Schenk v State of New York,
Ct Cl, unreported decision and order dated March 7, 2001, Corbett, J., Claim
No. None, Motion No. M-60539.
Accordingly, the Cross-Motion to Dismiss is denied without prejudice to the
Defendant to move for Summary Judgment after all discovery is complete or to
dismiss at trial after the Claimant has presented his case.