New York State Court of Claims

New York State Court of Claims

SOTO v. THE STATE OF NEW YORK, #2006-036-535, Claim No. 111499, Motion Nos. M-71537, CM-71590


Claim contained sufficient information to allow for a thorough investigation; thus it complies with Court of Claims Act section 11(b).

Case Information

1 1.The court has sua sponte deleted the unnecessary and improper reference to the New York State Police, a State agency, from the caption.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has sua sponte deleted the unnecessary and improper reference to the New York State Police, a State agency, from the caption.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
DAVOLI & VESNAVER, LLPBy: Bernard W. Hylan, Esq.
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Gail Pierce-Siponen, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 15, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion to strike the second and fifth affirmative defenses from the answer and defendant’s cross-motion to dismiss the claim for lack of jurisdiction. [2] In its responding papers, defendant withdrew the fifth affirmative defense, leaving at issue the second affirmative defense – “the amended claim fails to comply with Court of Claims Act Section 11 by failing to include sufficient particularization of the nature of the accident alleged in the claim and the manner in which it occurred, and therefore there is no proper claim over which the Court has jurisdiction” – and defendant’s cross-motion to dismiss.

The claim arises out of an April 18, 2005 automobile accident in which a vehicle owned and operated by claimant was allegedly struck by a New York State Police vehicle. The claim identifies the time and location of the accident and alleges various acts of negligence on the part of the driver of the State Police vehicle. A copy of the police accident report was attached.

Court of Claims Act § 11(b) requires that a claim or notice of intention set forth “the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed.” 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]).

The various alleged deficiencies in the claim, i.e. failing to specify which lanes the two vehicles were in, failing to state whether they were proceeding straight or turning and whether it was a head-on, side or rear-end collision – relate to things that are properly the scope of a bill of particulars and deposition testimony. They have nothing to do with defendant’s ability to investigate the subject incident based on the information provided in the claim and the notice of intention. The court finds that claimant satisfied the requirements of Court of Claims Act § 11(b), grants the motion to strike the second affirmative defense, and denies the cross-motion to the extent that it is premised on § 11(b).

The alternate ground advanced by defendant for dismissal – that a police vehicle engaging in police activity is judged under a recklessness standard, not a negligence standard (see Saarinen v Kerr, 84 NY2d 494 [1994]) – is premature. While defendant’s statement of the law is correct, there has been no disclosure pertaining to this issue and there is nothing before the court from anyone with knowledge of the events upon which the relevant issues could be evaluated. Accordingly, defendant’s motion is denied, without prejudice to a further motion made upon the same ground after disclosure proceedings have been concluded.

June 15, 2006
New York, New York

Judge of the Court of Claims

[2].The court considered the Notice of Motion, Affirmation and Exhibits, the Notice of Cross-Motion and Affirmation and the Reply Affirmation.