Claimant's notice of intention adequately identified the time when and place where the claim arose as required by Court of Claims Act § 11(b). Defendant's motion for dismissal of the claim is denied.
|Claimant short name:||WILSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||CHARLES E. LUPIA, ESQ.|
|Defendant's attorney:||HON. ANDREW M. CUOMO
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 11, 2007|
|Appellate results:||61 AD3d 1367|
|See also (multicaptioned case)|
The following papers, numbered 1 to 5, were read on motion by Defendant for dismissal of the claim:
1) Defendant's Notice of Motion, filed March 28, 2007;
2) Affirmation of James L. Gelormini, Esq., dated March 27, 2007, with attached exhibit;
3) Defendant's Memorandum of Law, dated March 27, 2007;
4) Affirmation of Charles E. Lupia, Esq., dated June 11, 2007;
5) Affidavit of Patricia Wilson, sworn to June 7, 2007, with attached exhibits.
In her claim, filed on February 21, 2006, Claimant alleges that on March 16, 2004, while an inmate confined at Albion Correctional Facility ("Albion"), she slipped and fell on ice on a roadway outside of the draft processing area. Claimant alleges that Defendant was negligent in failing to properly remove the ice from the walkway. Claimant seeks $2,000,000.00, alleging that she suffered herniated discs and neuropathy as a result of the accident.
With this motion, Defendant seeks dismissal of the claim, arguing that the notice of intention served by Claimant while she was still pro se, is defective for two reasons. First, Defendant asserts that Claimant's description of the location of the accident is insufficient to enable them to adequately investigate the incident. Second, Defendant points out that the notice of intention indicates only that the accident occurred on March 16 at 11:30 p.m., and fails to specify the year (2004).
Whether a claim or notice of intention contains sufficient information to comply with Court of Claims Act § 11(b) has been the subject of frequent motion practice. A claim or notice of intention is required to state the time when and place where it arose and, the nature of the claim. These are substantive jurisdictional requirements (Lepkowski v State of New York, 1 NY3d 201) and failure to satisfy these requirements will result in dismissal (Cobin v State of New York, 234 AD2d 498).
With regard to the adequacy of the "time when" allegations of Claimant's notice of intention, I find that Claimant has sufficiently set forth the time when the accident occurred. The notice of intention is dated April 23, 2004, and was served upon the Attorney General on April 30, 2004. Accordingly, although Claimant left out the year when indicating that the incident occurred on March 16 at 11:30 p.m., I find it intuitively obvious that Claimant was referring to March 16, 2004. Defendant has provided no authority and I am aware of no case in which such an alleged pleading oversight was determined to be a jurisdictional defect.
With regard to the adequacy of the allegations concerning where the accident occurred, the language of the claim or notice of intention must be sufficiently specific to enable the defendant to conduct an investigation and ascertain its potential liability (Heisler v State of New York, 78 AD2d 767). "It is axiomatic that the sufficiency of a claim rests solely upon the assertions contained therein, and defendant is not required to go beyond the claim in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act § 11 . . . (citation omitted)" (Lepkowski v State of New York, 302 AD2d 765, 766, affd 1 NY3d 201).
There are several clear precedents which must be considered in determining whether or not Claimant's notice of intention adequately set forth the location of the incident. In Schneider v State of New York (234 AD2d 357), dismissal of the claim on § 11 grounds was upheld where it was asserted that claimant had fallen in the picnic area adjacent to the parking area at Heckscher State Park. On its motion to dismiss, defendant submitted a map showing a number of picnic areas near a number of parking areas scattered throughout the park. The Court, therefore, determined that the claim was not sufficiently specific.
In Heisler v State of New York (78 AD2d 767), the Appellate Division, Fourth Department, provided guidance on this issue stating: "[w]hat is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State."
In Cobin v State of New York (234 AD2d 498), the Court dismissed the claim, finding that identifying the site of the accident as "on the boardwalk at Jones Beach, County of Nassau, State of New York, in the East Quarter Circle, or its vicinity" was insufficient to adequately identify the location of the incident. Similarly, in Sheils v State of New York (249 AD2d 459, 460), the Appellate Division, Second Department, reviewed a claim which asserted that the location of the incident was on "Route 112/25A in front of the Infant Jesus Church, in Port Jefferson" and attached photocopies of photographs of the scene showing "a driveway located somewhere on a property with a 1,000-foot frontage on the roadway where the injured claimant fell." The Court determined that the claim gave insufficient notice of the location to Defendant and granted Defendant's motion to dismiss.
Here, the notice of intention indicates that Claimant slipped on ice which covered the roadway outside of the draft processing area. I find that the notice of intention, on its face, appears to specify a sufficiently exact area within the correctional facility. Defendant argues that the description of the location is not specific enough, but Defendant does not say why. Were there several draft processing areas in Albion, or perhaps several distinct entrances to the draft area, I might agree with Defendant that the notice of intention is too vague in this regard (see e.g. Cobin v State of New York, 234 AD2d at 499, supra). I have no such information before me. I find that Defendant has failed to demonstrate that the location specified in the notice of intention lacked sufficient specificity so as to "mislead, deceive or prejudice the rights of the State" (Heisler v State of New York, 78 AD2d 767, supra).
Accordingly, it is hereby
ORDERED, that Defendant's motion is denied without prejudice.
September 11, 2007
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims