New York State Court of Claims

New York State Court of Claims

COUSINS v. THE STATE OF NEW YORK, #2007-014-520, Claim No. 112514, Motion Nos. M-72537, CM-72617


Synopsis


Defendant’s motion to dismiss the claim on the ground that it does not sufficiently state its nature is denied; claimants’ cross motion to amend the claim is granted.

Case Information

UID:
2007-014-520
Claimant(s):
MATTIE COUSINS and HARVEY COUSINS
Claimant short name:
COUSINS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112514
Motion number(s):
M-72537
Cross-motion number(s):
CM-72617
Judge:
S. Michael Nadel
Claimant’s attorney:
Paul Ajlouny & AssociatesBy Neil Flynn
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy Assistant Attorney General Karen G. Leslie
Third-party defendant’s attorney:

Signature date:
October 29, 2007
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the defendant’s motion to dismiss the claim, and on the claimants’ cross motion to amend the claim: Notice of Motion, Affirmation in Support and Exhibits annexed; Notice of Cross Motion, Affirmation and Exhibit annexed.

The defendant has moved to dismiss the claim on the ground that it does not include an adequate description “of the condition alleged in the claim as a cause of the incident” and/or “of the manner in which the incident occurred.” It is the defendant’s contention that the claim does not therefore comply with the requirement of Court of Claims Act section 11 (b) that a claim shall state “the nature of same.” The claim alleges the defendant was “negligent, reckless and/or careless in causing, creating and/or allowing a dangerous and defective condition to exist.” The claim further alleges that the claimant was injured “as the result of a dangerous, hazardous and defective condition including but not limited to a broken and/or defective window.” The claim also alleges that it arose on a particular date, at a specified time, at a specified location.

The nature of the claim appears to be one for negligence, arising out of a broken or defective window. It is the defendant’s contention that this is insufficient as required by section 11 (b), and that the Court is deprived of jurisdiction over the claim.

Section 11 (b) “places five specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the claim to specify (1) ‘the nature of [the claim]’; (2) ‘the time when’ it arose; (3) the ‘place where’ it arose; (4) ‘the items of damages or injuries claimed to have been sustained’; and (5) ‘the total sum claimed’” (Lepkowski v State of New York, 1 NY3d 201, 207). “The failure to satisfy any of the conditions is a jurisdictional defect” (Kolnacki v State of New York, 8 NY3d 277, 280-281).

While the Court of Appeals has determined that the absence of any one of the five[1] components set forth in section 11 (b) of the Court of Claims Act deprives the Court of jurisdiction over the claim, it has also explained that “[a] claim may always be amended at a later time, if necessary” (Kolnacki, supra at 281).

Thus, while the absence of any one of the required components set forth in section 11 (b), being of jurisdictional import, is not correctable by amendment of the claim to add it, the sufficiency with which any one of the components has been stated is amenable to amendment, as long as the claim itself is sufficiently “definite ‘to enable the State . . . to investigate the claim promptly and to ascertain its liability under the circumstances,’ which is the guiding principle informing” section 11 (b) (Lepkowski, supra at 207, quoting Heisler v State of New York, 78 AD2d 767).

By the foregoing standard, the claim satisfies the requirements of the Court of Claims Act. Its nature is stated, and the contents of the claim, which includes the time and place it accrued, are sufficiently definite to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances. The defendant has not suggested it has had any difficulty investigating the claim.

The defendant’s motion also seeks dismissal of the Claim on the basis of the Sixth Affirmative Defense in the Verified Answer to the Claim, which states: “The Court lacks jurisdiction over the claim because the notice of intention did not adequately describe the manner in which the incident occurred, or the injuries sustained, rendering it legally insufficient to extend claimant’s time in which to file a claim, and therefore the claim is untimely.”

Any defect in the description of the injuries sustained in a notice of intention is immaterial, since it is not required that a notice of intention include such. The description of the manner in which the incident occurred is the same in the notice of intention as it is in the claim, which the Court has determined to be sufficient.

In any event, pursuant to the provisions of subdivision c of Court of Claims Act section 11, an objection to the timeliness of the service or filing of a claim must be stated “with particularity” or it is waived, and “the court shall not dismiss the claim for such failure.” In order to be raised with particularity a defense must state the factual elements to be proven, not legal conclusions (see Sinacore v State of New York, 176 Misc 2d 1; CPLR 3013). The Sixth Affirmative Defense does not specify “the action that would have been proper” (Sinacore, supra, at 9), namely: service and filing of a claim within 90 days of its accrual. The objection based on the purported insufficiency of the Notice of Intention has not been stated with the particularity required by section 11(c), as a result of which the defense of timeliness has been waived, so that there is no legal basis for dismissal of the Claim on that ground.

The claimants have cross moved to amend the claim, to add the words “which closed precipitously on her hand” to the allegation in the claim that the claimant was injured “as the result of a dangerous, hazardous and defective condition including but not limited to a broken and/or defective window.” The defendant has not submitted opposition to the cross motion. Having satisfied the requirements of section 11 (b), “[a] claim may always be amended at a later time, if necessary” (Kolnacki v State of New York, supra at 281).

In accordance with the foregoing, the defendant’s motion is denied in its entirety and the claimants’ cross motion is granted; the claimants shall serve and file the amended claim with 45 days of the date of this Order.



October 29, 2007
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims




[1].Chapter 606 of the Laws of 2007 eliminated one of the required components, related to specifying damages in personal injury, wrongful death and medical, dental and podiatric malpractice claims. The requirement that the nature of the claim must be stated was unchanged.