New York State Court of Claims

New York State Court of Claims

SCHLOSSMAN v. THE STATE OF NEW YORK, #2006-036-525, Claim No. 111230, Motion Nos. M-71240, CM-71289


When defendant alleges that a claim does not comply with CCA section 11(b), it must show how its ability to investigate was impaired by the alleged deficiency.

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:
GOLBFARB & GERZOGby Ira Gerzog, Esq.
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALby Gail Pierce-Siponen, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 16, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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. [1] 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 [2003]), 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 2004]).

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 ¶3)[2] 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 [1994]: “[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 law.”

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.

May 16, 2006
New York, New York

Judge of the Court of Claims

[1].The court considered the Notice of Motion, Affirmation and Exhibits and the Notice of Cross-Motion, and Affirmation.
[2].Defendant does not contend that the claim and notice of intention failed to adequately set forth the “place where” the claim accrued (Court of Claims Act § 11[b]).