That on October 16, 2006, while Plaintiff JULIAN TAMEZ was lawfully and
carefully working in a trench at the aforesaid premises, at Interstate 87, near
Route 155, Albany, NY, he was caused to be injured by reason of the negligence
of the Defendant, their agents, servants, and/or employees in the ownership,
operation, direction, supervision, possession, control, construction,
rehabilitation and/or alteration of the said New York State Thruway sustaining
the injuries hereinafter alleged.
The claim asserts theories of liability premised upon the defendants'
negligence and violations of Labor Law § § 200, 240 and 241. The
claim also alleges a cause of action for violation of Rule 23 of the Industrial
Code as well as for loss of consortium on the derivative claim.
Defendants argue in support of their motion that the claim is insufficiently
specific to state a cause of action because it fails to sufficiently set forth
the location of the accident and the nature of the claim.
Section 11(b) of the Court of Claims Act requires that a claim state "the time
when and the place where such claim arose, the nature of same, and the items of
damage or injuries claimed to have been sustained and the total sum claimed...".
The guiding principle in determining the sufficiency of a claim is whether it
is sufficiently definite " '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 , quoting Heisler v
State of New York, 78 AD2d 767, 767 ). While pleading with "absolute
exactness" is not required, a cause of action must be pled with sufficient
specificity so as not to mislead, deceive or prejudice the rights of the State
(Heisler v State of New York, supra, 78 AD2d at 767).
When it is contended that the place where the accident occurred is
insufficiently identified to satisfy the pleading requirements of Court of
Claims Act § 11(b), it is incumbent upon the defendant to demonstrate that
its ability to conduct a meaningful investigation was impaired (see
Smith v State of New York, Ct Cl, December 22, 2006 [Claim No. 112489,
Motion No. M-72095, UID # 2006-009-079] Midey, J., unreported; Singh v State
of New York, Ct Cl, September 20, 2006 [Claim No. 109854, Motion No.
CM-71727, UID #2006-036-553] Schweitzer, J., unreported; Schlossman v State
of New York, Ct Cl, May 16, 2006 [Claim No. 111230, Motion No. M-71240,
UID #2006-036-525] Schweitzer, J., unreported; Partridge v State of New York,
The New York State Canal Corporation, and the New York State Thruway
Authority, Ct Cl, March, 2001 [Claim No. 90710, Motion No. M-62089, UID
#2001-013-001] Patti, J. unreported; Cannon v State of New York, 163
Misc 2d 623 [Ct Cl 1994]). No such showing was made here and the Court finds
that the place of the accident which is the subject of the instant claim was
sufficiently identified under the circumstances (see Sinski v State of
New York, 265 AD2d 319 [2d Dept 1999]; Vogler v State of New York,
2002 WL 32068269 [Ct Cl 2002]; cf. Rizzo v State of New York, 2
Misc 3d 829 [Ct Cl 2003]).
A contrary conclusion is reached with respect to the allegations regarding the
nature of the claim. It is well-settled that conclusory or general allegations
of negligence that fail to state the manner in which the claimant was injured
and how the State was negligent do not meet the pleading requirements of Court
of Claims Act § 11(b) (Patterson v State of New York
, 54 AD2d 147
[4th Dept 1976], affd
45 NY2d 885 ; Grumet v State of New
, 256 AD2d 441, 442 [2d Dept 1998]
Here, claimant alleged only that he was injured in a trench. As to the manner
in which the accident occurred, the defendants were left to guess, speculate or
go beyond the claim to ascertain information which should have been provided
within the claim. As noted by the Court of Appeals in Lepkowski v State of
, (1 NY3d 201, 208 ) the State is not required to "ferret out
or assemble information that section 11(b) obligates the claimant to allege".
The conclusory allegations in the claim did not enable the defendants to
investigate the claim promptly and ascertain its liability because neither the
manner in which the accident occurred nor a statement of how the defendants were
negligent is set forth in the claim. The mere happening of an accident in a
trench at a construction site is insufficient, without more, to conclude that
the defendants may bear liability for this accident.
Accordingly, the claim is dismissed.
See also Bonaparte v State of New York, 175 AD2d 683 [4th Dept 1991][a
claim must assert the defect which caused the accident or the nature of the acts
of State employees or agents giving rise to liability]; Artale v State of
New York, 140 AD2d 919 [3d Dept 1988][to state a cause of action for
negligence, a claim must set forth the manner in which the accident occurred and
how the negligence of the State caused the claimant's injuries]; Jackson v
State of New York, 85 AD2d 818 [3d Dept 1981], lv dismissed and denied
56 NY2d 501,568 [to state a cause of action there must be a statement
of how the State was negligent in causing the claimant's injuries]; Taylor v
State of New York, 36 AD2d 878 [3d Dept 1971], lv denied 33 NY2d 937
[conclusory allegations of negligence unsupported by factual detail are
insufficient to state a cause of action].