New York State Court of Claims

New York State Court of Claims

SUFFOLK COUNTY v. THE STATE OF NEW YORK and STONY BROOK UNIVERSITY HOSPITAL, #2007-041-047, Claim No. None, Motion No. M-73677


Synopsis


Application to treat notice of intention as claim is granted.

Case Information

UID:
2007-041-047
Claimant(s):
COUNTY OF SUFFOLK
Claimant short name:
SUFFOLK COUNTY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and STONY BROOK UNIVERSITY HOSPITAL
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-73677
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
CHRISTINE MALAFI, ESQ.
Suffolk County AttorneyBy: Marcia J. Lynn, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: John L. Belford, IV, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 12, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimant moves pursuant to Court of Claims Act § 10 (8) (a) for permission to treat its previously served notice of intention as a claim. Defendants oppose the motion. The claim arose on July 3, 2004 as claimant was landing its helicopter at a helicopter landing pad owned and maintained by defendants. The notice of intention to file claim alleges that as the helicopter approached the landing pad, an object was “sucked into the rotor wash and struck a rotor blade, thereby causing the helicopter to sustain severe and permanent damage to a main rotor blade, which required the rotor blade to be replaced.”

The notice of intention essentially alleged that the incident was caused by defendants’ negligent maintenance of the premises owned and controlled by defendants and set forth a total sum claimed as damages as $36,768.93. The notice of intention was served within ninety days of the claim’s accrual as required by Court of Claims Act § 10 (3).

A verified claim was thereafter served on the Attorney General on September 26, 2005 and filed with the Clerk of the Court of Claims on September 29, 2005. The claim failed to set forth a total sum claimed as required by Court of Claims Act § 11 (b) and claimant now seeks to have the notice of intention treated as a claim.

Pursuant to Court of Claims Act § 10 (8) (a):
“A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.”
The relief offered by § 10 (8) (a), although now codified, was initially a:
“[J]udicially created remedy for those claimants who had timely filed and served a notice of intention but subsequently failed to file a claim as required by the Court of Claims Act. Beginning with the case of Chalmers & Son v State of New York (271 App Div 699, affd without opn 297 NY 690), the Courts permitted such claims to be maintained where the notice of intention was sufficiently descriptive as to be the substantial equivalent of a claim (Carnesi v State of New York, 140 AD2d 912). Essentially, a notice of intention which was timely served and filed could be treated as a claim even though no claim was filed during the period provided in the statute” (Konviser v State of New York, 180 Misc 2d 174, 176 [Ct Cl 1999]).
The Chalmers court, at p. 701, offered a logical and reasonable basis for the relief now provided by Court of Claims Act § 10 (8) (a):
“The mere fact that it bears the baptismal name of a notice of intention to file a claim is not conclusive. It is of little moment what name the claimant gave it. The character of the document must be determined by its substance. The only statutory distinction between the notice of intention to file a claim and the claim itself is that in the notice of intention it is unnecessary to allege the items of damage and the amount claimed, whereas the claim must contain that information . . . . The sufficiency of a claim is to be tested by the provisions and purpose of the statute. The object of the statute should be kept in mind and it should not be given a construction that will defeat the ends of justice. No narrow rule of construction should be applied to the wording of a claim. That construction which preserves a bona fide claim so that its merits may be passed upon by a competent tribunal is to be preferred as against one which rejects it without trial.”
Here, the motion was made on July 2, 2007, before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules (July 3, 2007). The Court finds that the notice of intention was timely served and contains facts sufficient to constitute a claim.

The granting of the application would not prejudice the defendant, despite defendants’ allegation that the claim served and filed in September of 2005 contains additional theories of negligence that were not included in the notice of intention. Defendants have been aware of these additional allegations of negligence for over two years and a note of issue/certificate of readiness has not yet been filed. Defendants are free to pursue any disclosure they deem necessary or appropriate with respect to the “additional theories of negligence” in the claim.

The claimant’s motion for permission to treat the notice of intention as a claim is granted and the notice of intention, together with the verified claim served and filed in September of 2005, shall constitute the claim (see Court of Claims Act § 9 [8]: “The court shall have jurisdiction . . . [t]o amend, correct, or modify any . . . claim . . . in furtherance of justice for any error in form or substance”).

The notice of intention, together with the verified claim served and filed in September of 2005, shall be deemed filed as of August 13, 2004, the date of service on the Attorney General. The Answer and all other papers filed under the verified claim served and filed in September of 2005 (Claim No. 111441) shall be deemed to apply to the new claim referenced herein.

The clerk is directed to assign a claim number and the claimant is directed to pay the appropriate filing fee.

October 12, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion, filed July 6, 2007;
  2. Affirmation of Marcia J. Lynn, dated July 2, 2007, and annexed exhibits.
  3. Affirmation in Opposition of John L. Belford, IV, dated October 4, 2007.