Claim which misstates time claim arose, and which differs from the proposed claim approved by the Court in granting an application to file a late claim, is dismissed.
|Claimant(s):||CURTIS RANDY LEGGETT|
|Claimant short name:||LEGGETT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||D. ANDREW MARSHALL, ESQ.|
|Defendant's attorney:||HON. ANDREW M. CUOMO
New York State Attorney General
By: Karen G. Leslie, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 12, 2007|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim on the grounds that the Court lacks jurisdiction and that claimant has failed to comply with Court's order of May 17, 2006, which granted claimant's application to file a late claim. In particular, defendant asserts that the claim misstates the time the claim arose and that claimant filed and served a claim different from the proposed claim approved by the Court.
The original proposed claim, filed and served with claimant's application to file a late claim, stated that claimant was injured on November 26, 2002 at approximately 4:00 p.m. at Queensboro Correctional Facility when he slipped on water leaking from a toilet bowl as he was being placed in a holding cell. In his affidavit accompanying the late claim application, claimant said that he was placed in the holding cell while awaiting release to parole supervision from the defendant's custody and that the incident was witnessed by a correction officer who brought claimant to the facility medical clinic for treatment. Claimant further stated in his affidavit that a report of the incident and injury was prepared and a "full investigation" conducted.
In opposing the late claim application, defendant produced facility records showing that claimant had been placed in the holding cell at least 24 hours prior to the incident and that the claimant's alleged injury occurred at 8:40 a.m. Records were also produced indicating that claimant was kicking his cell door when he fell and that four hours after the subject incident claimant was again kicking his cell door, one of four additional instances of claimant kicking his cell door after the initial incident. The facility records did not state that anyone witnessed his fall or that water was on the cell floor.
In reply to the defendant's opposition to the late claim application, claimant changed his proposed claim to comport with the facility records. Although claimant's reply affidavit stated that he fell at approximately 8:30 a.m., his second proposed claim stated that he fell at approximately 8:40 a.m.
The late claim application was granted and claimant was ordered to "serve and file his proposed claim and otherwise comply with §§ 11 and 11-a of the Court of Claims Act."
Rather than serving and filing the approved claim, claimant served and filed yet a third claim, once again alleging that the incident occurred at approximately 4:00 p.m. on November 26, 2002 as he was being placed in a holding cell.
Court of Claims Act § 11 (b) provides that:
"The claim shall state 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. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court."
In Kolnacki v State of New York (8 NY3d 277 ), the Court of Appeals held that the Court of Claims lacks jurisdiction over a claim which fails to state "the total sum claimed," one of the requirements of section 11 (b). A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki, 8 NY3d at 280). The Court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (citing Lepkowski v State of New York 1 NY3d 201, 207 ) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
In opposing the defendant's dismissal motion (although denominated a "notice of cross-motion, claimant requests only an "order denying . . . [the] motion to dismiss"), claimant admits that the claim which was served and filed misstates the time of the incident and attributes the defect to an incomplete transfer of documents between law offices after claimant changed attorneys.
The various factual discrepancies describing the time when the claim arose are not trivial discrepancies, and are neither the result of an imperfect memory nor the result of inartful pleading. They are substantial variations. Indeed, they are the result of an attempt to address facts raised in defendant's papers in opposition to claimant's application for permission to file a late claim which, if true, would have rendered the occurrence time originally alleged by claimant, 4:00 p.m., an impossibility. Ironically, 4:00 p.m. is the time which claimant used in filing his claim, in contravention of the Court's order permitting late filing of the court reviewed and approved claim containing an occurrence time approximately 7 ½ hours earlier.
The discrepancies are both significant and of significance. Liability in a slip and fall claim invariably turns on questions of time: When did the injury-causing condition arise? How long did the condition remain unaddressed? Did this interval give, or should it have given, defendant notice of the condition? When did the claimant fall? The discrepancies go to the very heart of the claim and speak directly to whether the claimant has complied with the conditions required by Court of Claims Act § 11 (b) and most recently emphasized in the Kolnacki decision.
The Court finds that the claimant has not complied with the requirements of section 11 (b). In offering a variety of occurrence times and ultimately filing a claim which substantially misstates the time when the claim arose, claimant has failed to "state the time when and the place where such claim arose."
Consequently, dismissal of the claim is compelled since stating the time when the claim arose is one of the conditions of section 11 (b) and "failure to satisfy any of the conditions is a jurisdictional defect" (Kolnacki, 8 NY3d at 281).
Moreover, dismissal is additionally required based upon the filing and service of a claim different from the claim approved by the court:
"Where, pursuant to subdivision 6 of section 10 of the Court of Claims Act, the court directs that a claim be filed, it is the proposed claim which was tendered upon the motion which must be filed in haec verba or with such alterations as the court may have directed" (Iazzetta v State of New York, 105 Misc 2d 567, 570 [Ct Cl 1980]; see Laird v State of New York [Ct Cl, Lack, J., UID # 2004-033-075](1) ).
The defendant's motion is granted and the claim is dismissed.
June 12, 2007
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Notice of Motion, filed March 28, 2007;
2. Affirmation of Karen G. Leslie, dated March 23, 2007, and annexed exhibits;
3. Notice of Cross-Motion, dated May 11, 2007;
4. Affirmation of D. Andrew Marshall, dated May 11, 2007, and annexed exhibits.
1. This and other decisions of the Court of Claims may be found at the Court's website: www.nyscourtofclaims.state.ny.us.