New York State Court of Claims

New York State Court of Claims

SINGH v. THE STATE OF NEW YORK, #2006-036-553, Claim No. 109854, Motion No. CM-71727


Motion to strike unsupported affirmative defenses – that claim was insufficient and that governmental immunity defense applies to Labor Law claim – is granted.

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:
MALONEY & LETOWSKYBy: Paul H. Maloney, Esq.
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: John L. Belford, IV,Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 20, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s cross-motion for an order striking four affirmative defenses from the answer. [1] In response, two of the defenses have been withdrawn by the defendant, leaving the Fifth affirmative defense (alleging lack of jurisdiction arising from the failure of the claim to include “an adequate description of the condition alleged in the claim”) and the Eighth affirmative defense (alleging defendant’s employees “took actions which were privileged as being judicial, quasi-judicial or discretionary determinations” and that defendant is therefore immune from liability). [2]

The claim alleges that on August 12, 2003 at about 10:30 a.m., claimant, an employee of L & B Construction, Inc., was working on a State-contracted job on premises owned by the defendant when he was injured when he was struck by a falling object, specifically a piece of a “Bobcat” that was being used to hoist construction debris from the basement to the ground level of the premises (see generally Narducci v Manhasset Bay Assocs., 96 NY2d 259 [2001]). It asserts that defendant is liable for his injuries pursuant to Labor Law sections 200, 240 and 241 and various identified provisions of section 23 of the Industrial Code and, more specifically, that the Department of Environmental Conservation was responsible for supervision of the work and it failed to do so, and that claimant was not provided with proper safety devices to provide protection against falling objects.

Court of Claims Act § 11(b) requires a claim to set forth the time when and place where the claim accrued, the nature of the claim, the items of damage and the total sum claimed. The defense that the claim fails to comply with the statute by “failing to include an adequate description of the condition alleged in the claim as a cause of the incident” is presumably a reference to (actually, an interpretation of) the statutory requirement that a claim set forth its “nature.” In any event, there is no question that the claim clearly states the time when and place where it accrued, the items of damage and the total sum claimed, and defendant does not contend otherwise.

When evaluating a claim or notice of intention against an assertion that it fails to comply with § 11(b), the guiding principle is always whether it provides sufficient information to allow for an investigation by the defendant aimed at ascertaining its potential liability (Lepkowski v State of New York, 1 NY3d 201 [2003]; Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]). When contending that a claim allegedly falls short of this standard (whether, as here, in opposing a motion to strike a defense or, as defendant has elected for some reason not to do here, in seeking dismissal of a claim for lack of jurisdiction), it is incumbent upon defendant to demonstrate that its ability to investigate was impaired by the alleged insufficiency of the claim (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 [2001]; Turpin v State of New York, Ct Cl, Read, P.J., Claim No. 92485, Motion No. M-58816 [1999]). Here, defendant does not even discuss this issue.

Instead, defendant addresses the two defenses at issue herein – lack of jurisdiction based on alleged insufficiency of the claim and governmental immunity – together; stating that both are “not truly affirmative defenses,” that they are “harmless surplusage”with “no legal effect” intended to put claimant “on notice to the issues of State Immunity (sic) and on notice with issues of alleged defective condition said to exist” (Affirmation in Opposition, ¶ 6). No explanation of the contention that the allegations of the claim were insufficient to allow for an investigation is attempted, a contention that the court finds completely without merit given that the claim clearly sets forth the factual basis for the claim of State liability pursuant to the Labor Law with sufficient detail to allow for a thorough investigation. Instead, defendant presents nothing more than boilerplate.

Equally unsupported, and unsupportable, is defendant’s apparent position that a Labor Law claim arising out of the State’s status as owner and contractor of property under construction raises issues of governmental immunity. There are legions of reported decisions addressing State liability as an owner or contractor under the Labor Law (e.g. Mosher v State of New York, 80 NY2d 286 [1992]; Beard v State of New York, 25 AD3d 989 [3d Dept 2006]; Fitzpatrick v State of New York, 25 AD3d 755 [2d Dept 2006]). None of those decisions address a contention that the State’s liability in Labor Law claims involves issues of governmental immunity that arise in, for example, claims arising out of actions of the Parole Board (Tarter v State of New York,68 NY2d 511 [1986]) or challenging discretionary determinations of prison officials (Arteaga v State of New York, 72 NY2d 212 [1988]), or involving allegedly inadequate security or police protection (Laura O. v State of New York, 202 AD2d 559 [2d Dept 1994]), or arising from discretionary determinations of highway planners (Friedman v State of New York, 67 NY2d 271 [1986]) or executive branch officials with policy-making authority (Firth v State of New York, 12 AD3d 907 [3d Dept 2004]). Contrary to defendant’s assertion, the State’s liability under the Labor Law as an owner or contractor is the same as that of any non-governmental landowner or contractor (Miller v State of New York, 62 NY2d 506 [1984]; Preston v State of New York, 59 NY2d 997 [1983]). Moreover, even if defendant were to seek here to graft a governmental immunity defense onto this Labor Law claim, defendant has not made any factual assertions indicating that there were any judicial, quasi-judicial or discretionary governmental decisions uniquely involved in this construction project that might raise such an issue of immunity (cf. Glenesk v Guidance Realty Corp., 36 AD2d 852 [2d Dept 1971]: “Defenses which merely plead conclusions of law without supporting facts are insufficient”).

The court finds the Fifth and Eighth affirmative defenses are without merit (CPLR 3012[b]). Accordingly, claimant’s cross-motion is granted and the defenses are stricken from the answer.

September 20, 2006
New York, New York

Judge of the Court of Claims

[1].The original motion, concerning an issue irrelevant to this cross-motion, has been withdrawn.
[2].The court considered the Notice of Cross-Motion, Affirmation and Exhibits, the Affirmation in Opposition and the Reply Affirmation.