New York State Court of Claims

New York State Court of Claims

MATTHEWS v. THE STATE OF NEW YORK, #2007-028-541, Claim No. 112921, Motion Nos. M-72571, CM-72667


Synopsis


A Claim identifying the location of Claimant’s injury only as “Building 8A” is dismissed for failure to comply with the requirements of Court of Claims Act §11(b).


Case Information

UID:
2007-028-541
Claimant(s):
CAROL MATTHEWS AND ROBERT MATTHEWS
Claimant short name:
MATTHEWS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112921
Motion number(s):
M-72571
Cross-motion number(s):
CM-72667
Judge:
RICHARD E. SISE
Claimant’s attorney:
FRIEDMAN, HIRSCHEN & MILLER, LLPBY: Carolyn B. George, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Frederick H. McGown, III, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on Defendant’s motion for an order of dismissal and on Claimant’s cross-motion for leave to serve an amended claim:

1. Notice of Motion and Supporting Affirmation of Frederick H. McGown, III, AAG, with annexed Exhibit;


2. Notice of Cross-Motion and Supporting Affidavit of Carolyn B. George, Esq., with annexed Exhibits; and


3. Reply Affirmation of Frederick H. McGown, III.


Filed papers: Claim


This claim arose on July 27, 2006, when Claimant Carol Matthews was injured as she fell on a sidewalk, alleged to be improperly designed, built or maintained, outside premises owned and managed by Defendant. In the Claim, the premises near which the injury occurred is described only as “Building 8A.”

In lieu of answering, Defendant has moved to dismiss the action on the ground that the Claim “fails to state with particularity the facts underlying the claim” (Notice of Motion). Section 11(b) of the Court of Claims Act requires that a Claim set forth: “the time when and 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.” In determining whether this requirement has been met, the State’s ability to investigate the claim promptly and to ascertain its potential liability under the circumstances is “the guiding principle informing section 11(b)” (Lepkowski v State of New York, 1 NY3d 201, 207 [2003], citing to Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]).

Defendant bears the burden of demonstrating that it was impossible to conduct an investigation based upon the information that was provided (Cannon v State of New York, 163 Misc 2d 623 [Ct Cl 1994]). The Court does not agree with defense counsel that the Claim is defective because it provides insufficient information about the nature of the claim (e.g., “what actually occurred” or “how claimant received the alleged injury” [McGown Affirmation, ¶¶ 7-8]). With respect to the other substantive pleading requirements of section 11 (b), as long as Defendant is adequately informed of the date, time and place of the incident, State officials would be able to investigate any unusual incident that occurred, at that time and place, involving the Claimant. Unfortunately, the Claim contains information only about the date of the incident, and it identifies the location only as the sidewalk outside “Building 8A.” The Claim, therefore, fails to provide even the minimal information about the location of the incident that would be necessary to make an investigation possible (Rhodes v State of New York, 245 AD2d 791; Grande v State of New York, 160 Misc 2d 383 [Ct Cl 1994]; Arquette v State of New York, UID #2001-013-017, Claim No. 102374, Motion Nos. M-63135, CM-63219 [Ct Cl Sept 20, 2001], Patti, J.).

In response to the motion, counsel for Claimant has moved for permission to amend the Claim, to include the information that Claimant’s injury occurred at 12:20 p.m. to the back of Building 8A at the State Office Campus, Western Avenue, Albany, New York. Although in most instances, leave to amend is to be “readily granted” (CPLR 3025 [b]), defects that are jurisdictional may not be cured by amendment (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 [3d Dept 1986]; Grande v State of New York, 160 Misc 2d 383; see also Valz v Sheepshead Bay Bungalow Corporation, 249 NY 122 [1928]). The substantive requirements contained in section 11(b) of the Court of Claims Act are jurisdictional in nature (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]), and consequently a deficiency such as this may not be cured by amendment.

In the body of the Affidavit submitted by Claimant’s counsel, there is reference to the relief available under section 10(6) of the Court of Claims Act: permission to file a late claim. This relief is not set forth in the Notice of Motion, however, nor are the statutory factors that must be considered on such a motion addressed in any detail in the Affidavit. Consequently, if Claimant seeks to pursue that remedy, she must do so by formal application as required by the statute (Calderazzo v State of New York, 74 AD2d 954 [3d Dept 1980]).

Defendant’s motion is granted and Claim No. 112921 is dismissed: Claimant’s cross- motion is denied.


March 30, 2007
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims