This is claimant’s motion to strike the first and second affirmative
defenses asserted in defendant’s answer and defendant’s cross-motion
for an order dismissing the claim for lack of jurisdiction.
The claim arose on May 13, 2005 when
claimant’s decedent tripped and fell on a step at the entrance to the Park
Avenue Armory at 643 Park Avenue in Manhattan. It is alleged that Mr.
Schlossman suffered multiple fractures in the accident, necessitating surgery
six days later, and that he died as the result of complications of surgery on
May 30, 2005.
Claimant served a notice of intention to file a claim on June 16, 2005 and
served and filed the within claim on August 5, 2005. Answering the claim,
defendant alleged that both the notice of intention and the claim failed to
include “an adequate description of the manner in which the incident
occurred” (First Affirmative Defense) and that both the notice of
intention and the claim failed to include “an adequate description of the
condition alleged in the claim as a cause of the incident” (Second
Affirmative Defense). Claimant moves to strike these two defenses and defendant
cross-moves to dismiss for lack of jurisdiction arising from the alleged
deficiencies in the claim.
Court of Claims Act § 11(b) requires that a claim or a notice of intention
to file a claim set forth, as relevant here, the “nature” of the
claim. In Lepkowski v State of New York (1 NY3d 201 ), the Court
of Appeals reiterated the long-standing principle that the purpose of the
§11(b) requirements is to “enable the State . . . to investigate the
claim[s] promptly and to ascertain its liability under the circumstances”
(id., at 207, quoting Heisler v State of New York, 78 AD2d 767
[4th dept 1980]; see also Klos v State of New York, 19 AD3d 1173 [4th
Dept 2005], Rodriguez v State of New York, 8 AD3d 647 [2d Dept
Here, both the notice of intention and the claim allege that the accident
occurred at the “steps and/or doorway entrance” of the Park Avenue
Armory (Claim ¶4; Notice of Intention
and that the steps and pavement in
that location were “uneven, unmarked, improperly designated, an optical
illusion, improperly maintained, worn, depressed, uneven, broken, cracked,
improperly repaired and restored and/or under renovation” (Claim ¶12,
Notice of Intention ¶4). Both documents go on to allege further negligence
in failing to provide proper warning of the dangerous condition and failing to
provide a handrail.
Although defendant alleges that the claim did not provide “sufficient
particularization” of the nature of the claim, there is no indication that
the information provided was insufficient to enable a prompt and thorough
investigation of the events that form the basis of the claim (cf. Cannon v
State of New York, 163 Misc 2d 623, 627 : “[d]efendant is
obligated to investigate, or attempt to investigate, the accident before it
claims it cannot conduct an investigation”). Rather than address its
alleged inability to investigate – the “guiding principle informing
§ 11(b)” (Lepkowski, supra, at 207) – defendant instead
raises issues that are properly the subject of a demand for a bill of
particulars, or perhaps a demand for expert witness information, and matters
that are within its own knowledge.
While the State need not go beyond a claim or notice of intention in order to
obtain information sufficient to conduct an investigation, “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; see also Bennett v New
York City Transit Authority, 4 AD3d 265 [1st Dept 2004] affd 3 NY3d 745).
As was noted in Mendelsohn v City University of New York (Ct Cl,
Scuccimarra, J., Decision and Order dated December 5, 2005, UID No.
2005-030-937), in language equally applicable here, “[d]efendant seems to
contend that a claimant must conduct a thorough investigation and provide the
defendant, in the notice of intention or claim, with the results. Such is not
The court finds that claimant provided sufficient information to enable the
State to thoroughly investigate the relevant facts and that the notice of
intention and the claim fully complied with § 11(b). Accordingly, the
motion to strike the first and second affirmative defenses is granted and the
cross-motion to dismiss for lack of jurisdiction is denied.