New York State Court of Claims

New York State Court of Claims

TAMEZ v. NEW YORK STATE THRUWAY AUTHORITY and THE STATE OF NEW YORK, #2007-015-213, Claim No. 113184, Motion No. M-72858


Synopsis


Claim dismissed for failure to comply with the pleading requirements of Court of Claims Act § 11 (b). The nature of the claim was not sufficiently set forth.

Case Information

UID:
2007-015-213
Claimant(s):
JULIAN TAMEZ and BRENDA TAMEZ
Claimant short name:
TAMEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113184
Motion number(s):
M-72858
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Greenberg & GreenbergBy: Mark D. Greenberg, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
and Napierski, VanDenburgh & Napierski, LLPBy: Scott M. Peterson, Esquire
Third-party defendant’s attorney:

Signature date:
July 10, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendants' motion to dismiss the instant claim for failure to state a cause of action pursuant to CPLR 3211(a) (7) is granted. The claim herein alleges that Julian Tamez was injured while employed by Bette & Cring, LLC at a construction site on the New York State Thruway. With respect to the happening of the accident, paragraphs 17 and 37 of the claim state the following:
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 [2003], quoting Heisler v State of New York, 78 AD2d 767, 767 [1980]). 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 [1978]; Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998][1]. 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 New York, (1 NY3d 201, 208 [2003]) 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.

July 10, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 18, 2007;
  2. Affirmation of Paul F. Cagino dated January 18, 2007;
  3. Affirmation of Mark D. Greenberg dated April 20, 2007;
  4. Affirmation of Scott M. Peterson dated April 30, 2007.



[1].
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 [1982][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 [1974][conclusory allegations of negligence unsupported by factual detail are insufficient to state a cause of action].