This matter comes before the court on defendant’s motion (M-72915) to
dismiss the claim, pursuant to CPLR Rule 3211 (a) (2) and (8), for lack of
subject matter jurisdiction over the claim and for lack of personal jurisdiction
over the defendant. It is defendant’s contention that the claim fails
“to specify with sufficient detail where the Claim arose and the nature of
the State’s negligence” (attorney’s affirmation).
In response to defendant’s motion, claimants have cross-moved (CM-72994)
for an order dismissing the defendant’s third, fourth and fifth
affirmative defenses, or alternatively, granting permission to claimants to file
a late Notice of Intention to File a Claim and/or an amended “Notice of
Claim” (it is presumed that claimants meant “Claim”).
Claimant Barbara Jo Deep was allegedly injured in a motor vehicle collision
with a state vehicle on February 7, 2005. (Claimant Norman P. Deep seeks
damages for loss of consortium.) The Notice of Intention to File a Claim was
timely served and received by the Attorney General on May 4, 2005.
Subsequently, the Claim was filed with the Chief Clerk of the Court of Claims on
September 8, 2006 and received by the Attorney General’s Office on October
The first issue to address is whether the original Notice of Intention to File
Claim was so deficient as to fail to provide sufficient notice within the
meaning of Court of Claims Act § 11.
Resolution of claimant’s motion to amend the claim depends upon the
sufficiency of the original pleading. If claimant failed to comply with the
statutes vesting this court with jurisdiction, then he cannot amend the claim as
of right or with permission, so as to cure the jurisdictional defect.
(Grande v State of New York, 160 Misc 2d 383, 385, citing with favor,
Sudakin v Long Is. R. R. Co., 32 AD2d 560).
Thus, given the passage of time, if the Notice of Intention to File a Claim is
fatally deficient, then clearly the claim itself is time-barred, and
defendant’s motion to dismiss should be granted.
Court of Claims Act § 11 (b) provides, in relevant part:
[t]he 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. . . . 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 Notice of Intention to File a Claim makes the following allegations:
[t]his claim is for personal injuries suffered by the Claimant, Barbara Jo Deep,
on or about February 7, 2005 on Old River Road, in the Town of Marcy, County of
Oneida, State of New York.
The Claimant, Barbara Jo Deep, a driver traveling in a motor vehicle, was caused
to be seriously and permanently injured due to the negligent, hazardous and
dangerous operation of a vehicle owned and operated by the State of New
While the Notice of Intention to File a Claim does not state the precise manner
in which the vehicles collided, the Notice of Intention to File a Claim does go
on to set forth a litany of at least eighteen different acts by which it is
alleged that the defendant was negligent in this collision.
At the very least, there is sufficient information contained in the Notice of
Intention to File a Claim that “[t]he manner in which claimant was injured
and how the defendant was negligent . . . can be reasonably inferred”
(Heisler v State of New York, 78 AD2d 767; Klos v State of New York,
19 AD3d 1173). The Notice of Intention to File a Claim states the nature of
the defendant’s negligence with sufficient particularity to comply with
Court of Claims Act
§ 11 (b) (Rodriguez v State of New York, 8 AD3d 647).
However, the Notice of Intention to File a Claim is far more problematic when
it comes to sufficiency of the allegations of where the claim arose.
The Court of Appeals has noted in Lepkowski v State of New York, 1 NY3d
[t]he State’s waiver of immunity from suits for money damages is not
absolute, but rather is contingent upon a claimant’s compliance with
specific conditions placed on the waiver by the Legislature [citation omitted].
Further, “[b]ecause suits against the State are allowed only by the
State’s waiver of sovereign immunity and in derogation of the common law,
statutory requirements conditioning suit must be strictly construed”
(Lichtenstein v State of New York, 93 NY2d 911, 913 , quoting
Dreger v New York State Thruway Auth., 81 NY2d 721, 724 .
Here, the Notice of Intention to File a Claim merely stated the location where
the cause of action arose as “Old River Road, in the Town of Marcy, County
of Oneida, State of New York”, with no further identifying features as to
the accident site. Claimants’ counsel indicates that he himself drove the
road, and it is 3.2 miles in length (the Court has no knowledge as to the
road’s length). Claimants emphasize that the precise location is less
important in the instant case, since the road conditions themselves are not
germane to the case. Claimants contend that it is the negligence of the driver
of the state’s vehicle which is critical.
However, in this case, the imprecise and vague location description is coupled
with a lack of time for the accident and no identification of the
defendant’s driver or the state agency, department or authority
There is ample case law that the imprecise description, in a Notice of
Intention to File a Claim, of the site where the cause of action arose is a
fatal defect which deprives the court of jurisdiction. The court in Rizzo v
State of New York, 2 Misc 3d 829, at 834, reviewed numerous specific fact
patterns found to be statutorily inadequate:
[t]he failure to adequately set forth the location of the incident has been held
to be a jurisdictional defect requiring dismissal of the claim (see, Sheils v
State of New York, 249 AD2d 459  [notice insufficient which indicated
accident occurred while claimant was crossing Route 112/25A in front of the
Infant Jesus Church, in Port Jefferson, photocopies of the photographs of the
location were difficult to see and only vaguely showed the driveway where
claimant fell on a property with 1,000-foot frontage on the roadway];
Schneider v State of New York, 234 AD2d 357, 357  [notice asserting
claimant fell “in the picnic area adjacent to the parking area” in a
state park was insufficient where there were various picnic areas adjacent to
parking lots]; Corbin v State of New York, 234 AD2d 498, 499 ,
lv dismissed 90 NY2d 925 , rearg denied 91 NY2d 849 
[notice of intention proving claimant fell “on the boardwalk at Jones
Beach, County of Nassau, State of New York, in the East Quarter Circle, or its
vicinity” was insufficient]; Grande v State of New York, 160 Misc
2d 383, 385  [claim provided claimant was “operating his motor
vehicle along Route 25A . . . when a tree fell upon his car,” also a
paragraph asserting State owned a roadway known as Route 25A in the Village of
Brookville was insufficient]).
Based upon applicable case law, and the examples cited above, the court is
constrained to find that the Notice of Intention to File a Claim is fatally
defective for its failure to comply with the requirement of Court of Claims Act
§ 11 (b) to state the “place where such claim arose”. The mere
description of the accident site as “Old River Road, in the Town of Marcy,
County of Oneida, State of New York”, coupled with no time of accident
(though a date was included), and no clue as to the state agency, department or
authority involved, renders the Notice invalid and ineffective. As the court
noted in Grande v State of New York, 160 Misc 2d 383, at 386:
[t]he defendant is not required to go beyond a claim or notice of intention in
order to investigate an occurrence or ascertain information which should be
provided pursuant to Court of Claims Act § 11 (Maurer v State of New
York, M-46911, Hanifin, J., Apr. 6, 1993). Further, the lack of prejudice
is not a factor with regard to determining jurisdictional questions in the Court
of Claims (Byrne v State of New York, 104 AD2d 782, lv denied 64
Likewise, the Court of Appeals has stated that the “Court of Claims Act
does not require the State to ferret out or assemble information that section 11
(b) obligates the claimant to allege” (Lepkowski v State of New York,
1 NY3d 201, 208).
The time within which to serve a Notice of Intention to File a Claim expired on
or about May 8, 2005. In the absence of service of a Notice of Intention to
File a Claim, the claim itself would have to have been served and filed within
the same 90-day period following the February 7, 2005 accident, or date of
accrual. Since the Notice is fatally deficient, it cannot now be amended, nor
can the original claim filed and served in 2006 stand, or be amended, since it
is not timely.
Defendant’s motion to dismiss the claim is granted, because the court
lacks subject matter jurisdiction over the claim and personal jurisdiction over
the defendant since an appropriately specific (with regard to location of
incident) Notice of Intention to File a Claim was not served within ninety days
of accrual, as required by the Court of Claims Act §§ 10 and 11. That
portion of defendant’s motion which sought dismissal of the claim for its
failure to particularize defendant’s negligence is denied.
Claimants’ cross-motion, insofar as it seeks to dismiss the third and
fifth affirmative defenses (related to jurisdiction) is denied.
Claimants’ cross-motion, insofar as it seeks to dismiss the fourth
affirmative defense (failure to particularize defendant’s negligence), is
moot. Claimants’ cross-motion, insofar as it seeks permission for
claimants to file a late Notice of Intention to File a Claim and/or an amended
claim, is denied, as the requested relief is time-barred.