New York State Court of Claims

New York State Court of Claims

AREIZAGA v. THE STATE OF NEW YORK, #2006-036-554, Claim No. 111218, Motion Nos. M-71803, CM-71868


Claim dismissed for lack of jurisdiction arising from failure to adequately set forth the claim’s nature. Cross-motion for permission to late file 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:
GREENSTEIN & MILBAUERBy: Michael A. Barnett, Esq.
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
September 28, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for an order striking affirmative defenses, or in the alternative allowing claimant to file a late claim pursuant to Court of Claims Act § 10(6), and defendant’s cross-motion for an order dismissing the filed claim for lack of jurisdiction. [1]

The claim arises out of a May 17, 2005 incident in which claimant fell on stairs located at Elder Avenue and Bruckner Boulevard in the Bronx and suffered injuries to his hand, including a fractured metacarpal requiring surgery. The motion and cross-motion both arise from four jurisdictional defenses asserted in the answer, with claimant moving to strike the defenses and defendant cross-moving to dismiss the claim for the reasons set forth in the defenses.

Two of the defenses, the sixth and seventh, are without merit. The claim clearly and adequately sets forth claimant’s damages – serious injuries including pain, shock and mental anguish as the result of which claimant incurred and will continue to incur medical expenses and be unable to perform his normal activities. Defendant’s contention that compliance with the statutory requirement [2] that a claim set forth “the items of damage or injuries claimed to have been sustained” requires that a claim contain “the actual body part injured, the type of injuries (be they fractures, sprains, tears . . .) [and] what type of medical care was received by claimant” has no support in the case law interpreting section 11. Defense counsel [3] cites no authority for his conclusion that the language of the claim is “insufficient under Court of Claims Act Section 11,” a conclusion that does not reflect the law (Affirmation in opposition to motion, ¶ 10).

The guiding principle informing analysis of claims and notices of intention that allegedly fail to meet the requirements of section 11(b) is whether the document provided 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, quoting Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]). Whether claimant broke a finger or sprained an ankle or whether he was treated with a closed or open reduction are not matters that need to be in a claim in order for the court to have jurisdiction. They have nothing to do with defendant’s ability to investigate to determine its potential liability and they may be supplied, as is commonly the case, in a bill of particulars.

The seventh affirmative defense, alleging that the court lacks jurisdiction due to claimant’s failure to allege the damages with particularity, as required by section 11 and Rule 206.6(b) of the Uniform Rules for the Court of Claims, is similarly without merit. Compliance with the statutory requirement that a claim state the amount demanded is not jurisdictional and a missing or inadequate ad damnum may be provided in an amended claim (Kolnacki v State of New York, 28 AD3d 1176 [4th Dept 2006]; Morris v State of New York, 27 AD3d 282); Hamilton v State of New York, 11 Misc 3d 650 [2005]). Moreover, noncompliance with a court rule does not raise jurisdictional issues (Hamilton, supra; Pryce v State of New York, UID No. 2005-018-459 [2005]).

The remaining two affirmative defenses allege that the court lacks jurisdiction because the claim does not include “an adequate description of the condition alleged in the claim as a cause of the incident” (third) and because the claim fails to “state the defect with sufficient particularity in terms of size and location” (fourth). These defenses refer to two requirements of the statute: that a claim state the “place where” it accrued and its “nature.”

Although defendant challenged the identification of the “place where” the claim accrued in the answer, the motion papers contains no discussion of this requirement and no attempt to explain why the claim is allegedly deficient in this regard. In any event, the court finds that the claim adequately set forth the location of accrual. Defendant does, however, have a valid point in characterizing the claim’s explanation of its “nature” as insufficient. In this regard, the claim states only that claimant was walking and he “was caused to slip and/or trip and fall” (Claim, ¶ 13). There is no indication of what caused him to slip or trip. Since the claim does not allege what happened, it does not state its “nature” with sufficient precision to allow for an investigation (Grumet v State of New York, 256 AD2d 441 [2d Dept 1998])[4] and the court lacks jurisdiction. For this reason, defendant’s cross-motion to dismiss the claim must be, and hereby is, granted.

Anticipating the possibility of a jurisdictional problem with the claim, claimant requests permission to file a late claim pursuant to Court of Claims Act § 10(6). In connection with this aspect of the motion, claimant has attached a proposed claim that cures the deficiency that requires dismissal of the filed claim [5] (see Lepkowski, supra; Klos v State of New York, 19 AD3d 1173; Rodriguez v State of New York, 8 AD3d 647; Wharton v City Univ. of New York, 287 AD2d 559; Heisler, supra).

Defendant maintains that claimant’s late filing application should not be granted because the proposed claim lacks apparent merit. In arriving at that conclusion, defendant confuses analysis of a timely claim under § 11(b) with analysis of a proposed claim under § 10(6) (see Mamedova v City University of New York, 13 Misc 3d 1211(A), UID No. 2006-036-549). The essential difference is that the former looks only at the contents of the pleading, whereas the apparent merit of a proposed claim is evaluated based on all of the evidence before the court, including the claimant’s factual allegations (which are presumed true for purposes of the motion) and extrinsic evidence such a photographs and documents.

Claimant has submitted copies of defendant’s bridge inspection reports from 2001 and 2003 that include “photographs of the exact step and missing metal plate where claimant had his accident two (2) years later” (Affirmation in Support, ¶ 5). Defendant does not dispute that it was responsible for maintenance of the stairs in question, that the stairs were regularly inspected as part of its bridge inspection program or that the defects claimant alleges were the cause of his accident are evident in the inspection reports and photographs. These documents are not irrelevant to the issue of whether defendant would suffer substantial prejudice from an order allowing late filing, as alleged by defendant; indeed they are significant in the determination of that issue.

The papers before the court establish that defendant had actual knowledge of the condition of the stairs that claimant maintains was the result of negligence. Defendant also had actual knowledge, within the statutory 90-day filing period, that claimant was injured on those stairs. Defendant does not mention the issue of prejudice in its opposition to claimant’s motion and the court finds that defendant would suffer no prejudice – much less the substantial prejudice referred to in § 10(6) – from an order allowing late filing.

The court further finds that claimant has established that the proposed claim is not legally defective or demonstrably without merit and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). Given the lack of prejudice and the arguable merit of the proposed claim, the court finds that claimant should be afforded the opportunity to litigate his claim on the merits (Jomarron v State of New York, 23 AD3d 527 [2d Dept 2005]; Marcus v State of New York,
172 AD2d 724
[2d Dept 1991]).

Accordingly, claimant’s motion to strike affirmative defenses or to submit an amended claim is denied, defendant’s cross-motion to dismiss the filed claim is granted, and Claim No. 111218 is dismissed. Claimant’s motion for permission to file a late claim is granted. Claimant may serve and file his proposed claim, in accordance with all relevant provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, including those pertaining to manner of service and payment of the filing fee, within 40 days after filing of this decision and order.

September 28, 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, Affirmation and Exhibits and claimant’s Affirmation in Opposition.
[2].Court of Claims Act § 11(b).
[3].Defendant’s motion papers were supported by an “affirmation” of a law student intern who states he was assigned to the defense of this motion under the supervision of an Assistant Attorney General.
[4].“In the instant case, the notice of intention to file a claim only stated that the claimant slipped and fell without any indication as to what allegedly caused him to slip and fall. The claim merely alleged that the State was ‘careless, reckless and negligent’. There was nothing in the language of either the notice of intention to file a claim or  the claim which would have alerted the defendants as to the nature of the alleged negligence.” (Grumet, id., at 442).
[5].The proposed claim alleges claimant “was caused to trip and fall and sustain severe and permanent injuries on a missing portion of the fourth step and/or riser down leading to the intersection of Elder Avenue and Bruckner Boulevard on said ramp, a photo of which is annexed hereto.” (¶ 13).