New York State Court of Claims

New York State Court of Claims

DEEP v. STATE OF NEW YORK, #2007-042-512, Claim No. 112729, Motion Nos. M-72915, CM-72994


Synopsis


This motion is brought by defendant 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. Claimants cross-move 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 Claim. Defendant’s motion to dismiss the claim is granted. 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 is denied. Claimants’ cross-motion insofar as it seeks to dismiss the fourth affirmative defense is moot. Claimants’ cross-motion insofar as it seeks permission to file a late Notice of Intention to File a Claim and/or an amended Claim is denied.

Case Information

UID:
2007-042-512
Claimant(s):
BARBARA JO DEEP AND NORMAN P. DEEP
Claimant short name:
DEEP
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112729
Motion number(s):
M-72915
Cross-motion number(s):
CM-72994
Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
PAUL M. DEEP, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: THOMAS M. TRACE, ESQ.Senior Attorney
Third-party defendant’s attorney:

Signature date:
June 22, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This motion is brought by defendant 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. Claimants cross-move 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 Claim. The following papers were considered by the Court:
  1. Defendant's Notice of Motion, filed February 6, 2007
  2. Affirmation of Thomas M. Trace, Esq., dated January 31, 2007
  3. Exhibits A - D, annexed to the moving papers
  4. Claimants' Notice of Cross-Motion, filed February 27, 2007
  5. Affirmation of Paul M. Deep, dated February 25, 2007
  6. Exhibits A - B, annexed to the cross-moving papers
  7. "Defendant's Response to Cross Motion" affirmation of Thomas M. Trace, Esq., dated March 14, 2007
______________________________________________

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 10, 2006.

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 York.


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 201, 206-207:

[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 [1999], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992].


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 involved.

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 [1998] [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 [1996] [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 [1996], lv dismissed 90 NY2d 925 [1997], rearg denied 91 NY2d 849 [1997] [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 [1994] [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 NY2d 607).


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.



June 22, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims