New York State Court of Claims

New York State Court of Claims

NOEL v. THE STATE OF NEW YORK, #2006-036-545, Claim No. 111582, Motion Nos. M-71538, CM-71716


State’s motion to dismiss based on Court of Claims Act section 11(b) was without basis and denied. Failure to include a total sum claimed in the claim is not jurisdictional . . . all applicable appellate law provides that the total sum claimed may be provided in an amended claim.

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:
SACKS & SACKSby Retu R. Singla, Esq.
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
September 20, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimants’ motion to strike three affirmative defenses from the answer and seeking permission to interpose an amended claim and defendant’s cross-motion for an order dismissing the claim for lack of compliance with Court of Claims Act § 11(b). [1]

The claim accrued on October 19, 2005 when Leroy Noel (hereinafter “claimant”), who was working on a construction project at Jamaica Avenue and the Van Wyck Expressway in Queens, was allegedly injured when he was struck by falling concrete that was improperly hoisted and/or improperly secured. The claim, which alleges liability under Labor Law §§ 200, 240 and 241(6) and various sections of the Industrial Code, was filed on November 3, 2005.

The three affirmative defenses claimants seek stricken from the answer are the Fifth (alleging that the court lacks jurisdiction because the claim does not contain an adequate description of the location of the incident or the manner in which the incident occurred) the Seventh (alleging that the court lacks jurisdiction because the claim fails to contain the total sum claimed and the items of damage as required by Court of Claims Act § 11 and Rule 206.6(b) of the Uniform Rules for the Court of Claims) and the Eighth (which alleges the claim fails to state a cause of action against the State of New York).

Subsequent to the service of defendant’s answer in December 2005, claimant submitted an amended claim that is identical to the filed claim, except that the final paragraph – “The item (sic) of damages sustained by the claimant exceeds the jurisdiction and limitation (sic) of the lower courts” with the following: “Claimant, LEROY NOEL, demands judgment against the defendant(s) (sic) herein for the sum of TEN MILLION ($10,000,000.00) DOLLARS, together with costs and disbursements of this action.” [2] The amended claim was verified and filed (by fax) on February 17, 2006. Claimants’ counsel indicates that the amended claim was rejected by the defendant, presumably because it was not timely interposed as of right and leave of the court was not requested (CPLR 3025; Uniform Rules for the Court of Claims 22 NYCRR § 206.7[b]). Claimants request, on this motion, leave to interpose an amended claim that adds the ad damnum and corrects the error discussed in footnote 2 herein (Exhibit “6” to Notice of Motion).

At issue is whether the claim complies with Court of Claims Act § 11(b) in three respects – whether it adequately sets forth the “place where” the claim accrued, its “nature” and the “total sum claimed”; whether it complies with Rule 206.6(b); and whether the defense that the claim fails to state a cause of action should be stricken from the answer.

Court of Claims Act §11 (b) requires that a claim set forth the time when and place where it accrued, the nature of the claim, the items of damage and the total sum claimed. The “guiding principle” when a claim or notice of intention is challenged as falling short of the statutory standard is whether the contents of the document provide sufficient information “to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances” (Lepkowski v State of New York, 1 NY3d 201, 207 [2003] quoting Heisler v State of New York, 78 AD2d 767 [4th Dept 1980] ; see also Rodriguez v State of New York, 8 AD3d 647; Klos v State of New York, 19 AD3d 1173; Kolnacki v State of New York, 28 AD3d 1176 [4th Dept 2006] lv granted 30 AD3d 1116; Morris v State of New York, 27 AD3d 282 [1st Dept 2006]; Hamilton v State of New York, 11 Misc 3d 650). Where, as here, defendant alleges that a claim’s identification of the “place where” it accrued falls short of what the statute requires, resulting in a failure of jurisdiction, it is incumbent on defendant to demonstrate how the allegedly insufficient identification impaired its ability to conduct a prompt and thorough investigation (Cannon v State of New York, 163 Misc 2d 623 [1994]; Kerr v State of New York, Ct Cl, Read, P.J., Claim No. 105574, Motion No. M-65237 [2002]; Partridge v State of New York, Ct Cl, Patti, J., Claim No. 90710, Motion No. M-62089, UID No. 2001-013-001 [2001]; Turpin v State of New York, Ct Cl, Read, P.J., Claim No. 92485, Motion No. M-58816 [1999]). Defendant does not explain why a specification of the location more detailed than “premises under construction at Jamaica Avenue and Van Wyck Expressway on the Southside of the Borough of Queens,” and also providing the date, time and identity of claimant’s employer, a contractor on the State construction job, was required in order for it to be able to investigate, nor does it suggest that any attempt at investigation was thwarted by the inability to pinpoint the location with more precision (cf. Cannon v State of New York, supra, 163 Misc 2d 623, 627 [3]).

This is a Labor Law claim alleging the failure to provide safety devices to prevent claimant from being struck by falling objects, in violation of various statutory and regulatory provisions. The liability of the State of New York is vicarious and its investigation necessarily involves consultation with its contractor, as suggested in the Cannon decision and as occurred herein which defense counsel concedes. The court finds the assertion that defendant was unable to adequately investigate is without basis.

Similarly, the court finds that the information set forth in the claim sufficiently set forth its “nature” as is required by the statute.

As to the claim’s failure to set forth the “total sum claimed,” current law is that this omission does not impair the court’s jurisdiction over the claim, and that addressing it in an amended claim sufficiently complies with the dictates of the Lepkowski decision (Kolnacki v State of New York, supra, 28 AD3d 1176 [4th Dept 2006] lv granted 30 AD3d 1116; Morris v State of New York, supra, 27 AD3d 282 [1st Dept 2006]; Hamilton v State of New York, 11 Misc 3d 650, supra). Compliance with Rule 206.6(b) does not raise jurisdictional issues (see Kern v State of New York, 12 Misc 3d 455 [2006] fn 2; Hamilton, supra; Pryce v State of New York, Ct Cl, Fitzpatrick, J., Claim No. 109542, M-69131, UID No. 2005-018-459 [2005]) and also may be addressed in an amended claim.

Finally, the Eighth affirmative defense – alleging that the claim fails to state a cause of action against the State of New York – apparently refers to the two mistaken references in paragraph 5 of the claim to the City of New York rather than the State of New York, references that are obvious typographical errors, given that it was the State that was served with the claim and given the claim’s allegations that the State was the owner of the property and the party that contracted with claimant’s employers. Such scriveners’ errors never have been held to have jurisdictional import (see authorities cited in footnote 2 supra.). Thus, the mistaken reference to the City of New York also may be corrected in an amended claim. To the extent that this defense was aimed at some other, unstated, aspect of the claim, “it is . . . the rule in [the Second] department that ‘[a] defense that a complaint does not state a cause of action cannot be interposed in an answer’ (Glenesk v. Guidance Realty Corp., 36 AD2d 852, 853). Instead, such a defense must be raised by motion pursuant to CPLR 3211 (a) (7)” (Bentivegna v Meenan Oil Co., 126 AD2d 506 [2d Dept 1987]; see also Petracca v Petracca, 305 AD2d 566 [2d Dept 2003]).

Accordingly, the motion is granted and the cross-motion to dismiss is denied. The Fifth, Seventh and Eighth affirmative defenses are stricken and claimant shall serve and file the amended claim (Exhibit “6” to the Notice of Motion) within 30 days of the filing date of this decision and order.

September 20, 2006
New York, New York

Judge of the Court of Claims

[1].The court considered the Notice of Motion, Affirmation and Exhibits, the Notice of Cross-Motion and Affirmation and the Reply Affirmation.
[2].Claimant’s counsel also states that the amended claim corrected a clerical error in the filed claim, such error consisting of two references in paragraph 5 of the claim to the “City of New York” rather than the “State of New York.” In fact, the amended claim contains those same two erroneous references to the City. Nevertheless, such a mistake is not jurisdictional where, as here, the proper defendant was served and a fair reading of the pleading gives accurate and adequate notice of the identity of the proper party defendant (Great Eastern Mall v Condon, 36 NY2d 544 [1975] see also Ibekweh v State of New York, 157 Misc 2d 710 [1993]; Martino v New York State Thruway Auth., 154 Misc 2d 905 [1992]); Schwartzberg v State of New York (121 Misc 2d 1095 [1983]).

[3].“When determining whether a claim could be investigated on the information provided, a distinction must be made between occurrences on roads, parks and premises open to the public and places under the exclusive control and operation of the defendant. An accident in a public area cannot be investigated without a specific location. Even when a location is specified, the condition must be described so an investigator has an indication of what to look for. An open, public area requires greater specificity because the defendant has no ability to ascertain what occurred by simply going to a designated place. An investigation of an accident arising out of work being performed for defendant in an enclosed building that is under the exclusive control of defendant entails speaking to the person responsible for the building or that person's agent. A notice of intention which provides a location specific enough to locate its own employee directly responsible for the building, satisfies the requirement of section 11 to set forth the place where the claim arose.(2) In the case before us claimant was working for a contractor hired by the defendant. Even if the engineer responsible for the power plant was unaware of this accident, the State through its engineer had to know the nature of the work being done by claimant's employer and exactly where it was being done within the building. The location of this accident was specific enough for an investigator to get to the building, or speak to the engineer in charge, and determine why claimant was in the building, where claimant was working in the building and what work claimant was performing at the time of the accident. This is not a preliminary investigation to gather information necessary for an investigation, but rather the investigation of the accident itself.”