New York State Court of Claims

New York State Court of Claims

DEAN v. THE STATE OF NEW YORK, #2006-036-555, Claim No. 111678, Motion No. M-71493


Synopsis


Affirmative defenses that claim failed to adequately specify the location this false arrest claim accrued or the nature of the claim, as required by Court of Claims Act section 11(b), are without merit and are stricken from the answer.

Case Information

UID:
2006-036-555
Claimant(s):
GUENEVERE DEAN
1 1.The caption has been amended to properly reflect the defendant.
Claimant short name:
DEAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to properly reflect the defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111678
Motion number(s):
M-71493
Cross-motion number(s):

Judge:
MELVIN L. SCHWEITZER
Claimant’s attorney:
GAFFIN & MAYO, P.C.By: Christopher Morik, Esq.
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Victor D’Angelo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 20, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


This is claimant’s motion to strike two affirmative defenses from the answer: the sixth – alleging the court lacks jurisdiction over the claim because both the notice of intention and the claim fail to comply with Court of Claims Act § 11(b) by failing to include an adequate description of the place where the claim accrued or the “manner in which the incident occurred” (Answer, ¶ Ninth), and the eighth – alleging that the claim fails to comply with Rule 206.6(b) of the Uniform Rules for the Court of Claims. [2]

In its opposition papers, defendant withdraws the eighth affirmative defense which, in any event, raises an issue that is not jurisdictional (see, Kern v State of New York, 12 Misc3d 455 [2006] fn 2; Hamilton v State of New York, 11 Misc3d 650 [2005]; Pryce v State of New York, Ct Cl, Fitzpatrick, J., Claim No. 109542, M-69131; UID No. #2005-018-459 [2005]). Defendant does oppose the motion to strike the sixth affirmative defense, arguing that the alleged defects in the notice of intention and the claim render those documents “jurisdictionally defective.” Despite taking that position in opposition to claimant’s motion to strike, defendant has not cross-moved to dismiss the claim for lack of jurisdiction.

The claim alleges that on December 12, 2004 at about 2:30 a.m., claimant was falsely arrested and imprisoned and charged with attempted theft of services and resisting arrest in front of the State of New York Maritime Facility in the Bronx by New York State Police Officer Joseph Walsh, Shield No. 462, who at the time was working as a security officer at the SUNY Maritime facility. The claim further alleges that claimant was detained until her arraignment in Criminal Court, Bronx County at about 2:00 p.m. on December13, that she seeks damages amounting to $1 million for 36 hours of confinement, emotional distress, medical expenses, lost earnings and legal fees, and that she served a notice of intention to file a claim on the Attorney General on March 9, 2005, which the court notes is within 90 days of accrual (Court of Claims Act § 10(3-b).

Neither party attached a copy of the notice of intention to its motion papers. Since defendant does not contend that the claim was untimely, it apparently concedes that it was timely served with the notice of intention. The reference in the affirmative defense at issue implies that the language of the notice of intention and that of the claim were the same, and the court will proceed on that basis since the claim is the only document before the court.

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 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 [2003] quoting Heisler v State of New York, 78 AD2d 767 [4th Dept 1980] [3]; see also Kolnacki v State of New York, 28 AD3d 1176 [4th Dept 2006]; Morris v State of New York, 27 AD3d 282 [1st Dept 2006]; Hamilton v State of New York, 11 Misc3d 650, supra.).

In support of its contention that the claim’s identification of the “place where” the claim accrued (Court of Claims Act § 11 [b]) is insufficient, other than Heisler, which does not support its position, defendant cites only two cases, neither of which has any application to the claim before the court – a decision affirming the dismissal of a breach of contract claim on grounds of untimeliness which does not address the issue of the place where the claim accrued (Park v State of New York, 226 AD2d 153 [1st Dept 1996]), and a decision affirming the denial of a motion to amend a notice of claim served pursuant to the General Municipal Law because the original notice failed to specify the location of the accident with sufficient particularity and amendment 14 months after the accident would cause substantial prejudice to the city (Blank v City of New York, 137 AD2d 577 [2nd Dept 1988]). That decision is not instructive as to what type of accident was involved, what the location was or how it was described in the notice.

In support of its contention that the claim herein does not contain “any adequate description of the manner in which the incident occurred” (Answer, ¶ Ninth; language that is not derived from the statute which rather requires that a claim or notice of intention set forth its “nature” [Court of Claims Act § 11(b)]) defendant also cites two cases that are inapposite. In Stukes v State of New York (Ct Cl, Marin, J., Claim No. 109918, M-71000, CM-71060, [2006], the court held that a medical malpractice claim with “not a single specific fact alleged” (id., 2) had to be dismissed for lack of jurisdiction because “without any descriptive information, the State cannot investigate the claim” (id.) and in Karen v State of New York (111 Misc 2d 396 [1981]), a false arrest and imprisonment claim was dismissed for noncompliance with § 11(b) because it contained “no indication when the claimants were released, or even arrested” (id., 398).

Here, the claim specifically and clearly sets forth the place where claimant was arrested, the name and badge number of the State employee effecting the arrest, the time she was arrested, the time she was released, the crimes she was charged with and the court where she was arraigned. Defendant’s contention that this information is insufficient is unsupported by a contention that defendant was unable to investigate claimant’s allegations, much less a factual demonstration in support of such a contention (cf. Cannon v State of New York, 163 Misc 2d 623 [1994]; Partridge v State of New York, Ct Cl, Patti, J., Claim No. 90710, M-62089 [2001]; Kerr v State of New York, Ct Cl, Read, P.J., Claim No. 105574, M-65237 [2002]; Turpin v State of New York, Ct Cl, Read, P.J., Claim No. 92485, M-58816 [1999]).

The court finds that the sixth affirmative defense is utterly without factual or legal basis and it is stricken.





September 20, 2006
New York, New York

HON. MELVIN L. SCHWEITZER
Judge of the Court of Claims




[2].The court considered the Notice of Motion, Affirmation and Exhibits, the Affirmation in Opposition and Exhibits and the Reply Affirmation.
[3].Defendant’s characterization of the Heisler holding is perplexing. The Affirmation in Opposition herein describes the result in Heisler as : “Claimant failed to provide an adequate description of exactly where the incident alleged in the claim occurred” (¶ 4). In fact, the Fourth Department held precisely the opposite : “Examining the notice in this case reveals that it states the date, time and place of the mishap and that the polling place ‘is under the supervision of the Erie County Board of Elections ... the Town of West Seneca ... and the West Seneca Central School District ... all acting pursuant to obligations imposed by the State of New York.’ It further alleges that Mrs. Heisler fell and fractured her right leg ‘at approximately 8:45 p.m. and as a result of proof and inadequate lighting and improper maintenance of the exterior premises’. This notice of intention substantially complied with the statute because it states the time, place, nature of the claim, injuries and total sum claimed. The State was thus adequately notified so that it could take such immediate investigative action as it deemed necessary. The manner in which claimant was injured and how the defendant was negligent were stated or can be reasonably inferred” (78 AD2d 768).