New York State Court of Claims

New York State Court of Claims

NOTO v. THE STATE OF NEW YORK and


NEW YORK STATE OFFICE OF PARKS,


RECREATION AND HISTORIC PRESERVATION, #2007-042-526, Claim No. 113439, Motion Nos. M-73253, CM-73790


Synopsis


This matter comes before the court on two motions. Defendant (while the caption names both the State of New York and the New York State Office of Parks, Recreation and Historic Preservation as separate defendants, the latter is a department of the former. As a result, there is in fact only one defendant, the State of New York) moved in the first motion in lieu of an answer pursuant to CPLR §§ 3211 and 3212 for summary judgment and dismissal of the claim with the contention that the claim fails to meet the statutory mandates of Court of Claims Act §§ 10 and 11. It is also defendant’s contention that the facts as stated in the claim fail to support a cause of action under General Obligations Law § 9-103. Defendant’s motion for summary judgment and dismissal of claim is denied. Claimant brings the cross-motion before the court seeking to amend the claim to state a “total sum” of damages. The court finds the requested relief unnecessary in light of the statutory change and claimant’s motion is denied.

Case Information

UID:
2007-042-526
Claimant(s):
KIMBERLY J. NOTO, Individually and as
Administratrix of the Estate of JOSEPH M.
NOTO, JR., and as Parent and Natural Guardian ofANTHONY NOTO and NICHOLAS NOTO
Claimant short name:
NOTO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and
NEW YORK STATE OFFICE OF PARKS,RECREATION AND HISTORIC PRESERVATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113439
Motion number(s):
M-73253
Cross-motion number(s):
CM-73790
Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
HEITZ & ASSOCIATES, P.C.By: WILLIAM R. HEITZ, ESQ.
Defendant’s attorney:
HANCOCK & ESTABROOK, LLPBy: DAVID G. LINGER, ESQ.
Third-party defendant’s attorney:

Signature date:
January 8, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

There are two motions before the court. The first motion, made by defendant[1] in lieu of an answer, is purportedly brought pursuant to CPLR §§ 3211 and 3212, and seeks summary judgment and dismissal of the claim. It is defendant’s contention that the claim fails to meet the statutory mandates of Court of Claims Act §§ 10 and 11. It is defendant’s further contention that the facts as stated in the claim fail to support a cause of action under General Obligations Law § 9-103.

The second motion is a cross-motion brought by claimant seeking to amend the claim to state a “total sum” of damages. Concededly, this motion was prompted by the recent Court of Appeals decision in Kolnacki v State of New York, 8 NY3d 277.

The following papers were considered by the Court:
  1. Notice of Motion, filed April 23, 2007
  2. Affidavit of David G. Linger, Esq., sworn to April 20, 2007
  3. Affidavit of Gary Stinson, sworn to April 19, 2007
  4. Exhibits A - D, attached to moving papers
  5. Notice of Cross-Motion, filed July 27, 2007
  6. Affirmation of William R. Heitz, Esq., dated July 24, 2007
  7. Exhibits attached to cross-moving papers
  8. Reply affidavit of David G. Linger, Esq., sworn to July 30, 2007

The second motion, a cross-motion by claimant seeking to amend the claim to state a “total sum” of damages, shall be addressed first. Claimant argues that generally, under CPLR § 3025, leave to amend is freely granted.

Defendant opposed the motion, relying upon Kolnacki v State of New York, 8 NY3d 277, arguing that the failure to provide a total sum of damages is a fatal jurisdictional defect which cannot be cured by amendment.

During the pendency of these motions, Court of Claims Act § 11 (b) was amended; the relevant portion of this section now states that:

[t]he claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed. [Emphasis added].


Chapter 606 of the 2007 Laws of New York (the enabling provisions for the amendment of Court of Claims Act § 11) provides, in relevant part, that the aforementioned amendment:

shall take effect immediately; provided, that notwithstanding any other provision of law, any claim which was pending on or after November 27, 2003 and which would have been viable if this act was effective at the time the claim was filed shall not be dismissed for failure to state the total dollar amount of the claim . . .


In light of this statutory change, the claimant’s motion is denied as the requested relief is unnecessary. The lack of a specific dollar amount of damages in this personal injury action is not dispositive of the case.

Likewise, and for the reasons stated above, that portion of defendant’s motion which seeks to dismiss the claim for failure to state a “total sum” of damages is denied.

Defendant also contends that the claim is fatally flawed in that its allegations as to the nature of the claim differ from those set forth in the notice of intention to file claim, thus making the claim untimely. The claimant’s decedent was killed in a snowmobile accident on March 14, 2005. Claimant served a notice of intention to file claim in this wrongful death action on June 17, 2005. The claim itself was filed and served on March 12, 2007.

The notice of intention to file claim, stated, in describing the nature of the claim:

[i]mmediately prior to the subject accident, the Decedent was traveling southwest on the Horace Forward Truck Trail (the “Trail”) and was caused to drive off of the north shoulder of the Trail and strike a tree at a dangerous left hand curve in the Trail.


The claim, on the other hand, states, in relevant part that:


[u]pon information and belief, on or about March 14, 2005, claimants’ [sic] decedent was lawfully and peacefully operating his 2002 Polaris snowmobile on a trail on Horace Forward Truck Trail/C5 (the “Trail”), 1.1 miles southwest of McDonald Road, when the snowmobile was caused to, and did, come into contact with a tree stump, causing the decedent to plunge into a tree causing severe bodily injury and death.


(Claim, ¶ 9).


It is defendant’s contention that the notice of intention to file claim was fatally inadequate, in that it did not sufficiently indicate the manner in which the claimant’s decedent was injured and how the State was negligent. However, this argument ignores the multiple acts of negligence alleged at paragraph “10” of the notice of intention to file a claim, included among which is the allegation that defendant was negligent in “[t]he creation of a dangerous

condition . . . through the negligent maintenance, construction, and design of said portion of the Trail”. The crux of defendant’s argument is its position that the inclusion of reference to the “tree stump” in the claim changes (from the notice given to defendant in the notice of intention to file claim) the entire nature of the claim and nature of the alleged negligence.

The Court finds this argument to be without merit. The notice of intention to file a claim, when read in its entirety, details the precise location of the accident (including the same specificity as to longitude and latitude utilized in the claim) and is sufficiently specific as to the general allegations of negligence - particularly maintenance and design - as to allow defendant ample ability to investigate the claim and to not mislead or prejudice the rights of the defendant. By the same token, these allegations are also broad enough that the enhanced allegations of the claim itself, which include reference to the stump, do not constitute a different or time-barred claim.

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).

There remains for consideration defendant’s motion for both dismissal and summary judgment of claimant’s claim based upon General Obligations Law § 9-103. First it should be noted that the defendant moved in lieu of an answer, which motion is permissible under CPLR § 3211 (e). However, a motion for summary judgment is not permissible until after issue has been joined (CPLR § 3212 [a]). Accordingly, to the extent defendant’s motion seeks summary judgment, it is denied upon this procedural basis.

Turning to the remainder of defendant’s motion, it is defendant’s contention that, as a result of the applicability of General Obligations Law § 9-103 to the facts of this case, the claim fails to state a cause of action. General Obligations Law § 9-103 provides, in those parts relevant here, that:

a. an owner, lessee or occupant of premises . . . owes no duty to keep the premises safe for entry or use by others for . . . snowmobile operation . . . , or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes;


b. an owner, lessee or occupant of premises who gives permission to another to pursue any such activities upon such premises does not thereby (1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.


However, the statute also includes a major exception to this protection from liability, to wit: the statute does not limit liability “for willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity” (General Obligations Law § 9-103 [2] [a]). This exception has been determined to include dangerous conditions created by the defendant itself, where it is highly probable that harm would result from the condition (Bush v Valley Snow Travelers of Lewis County, Inc., 7 Misc 3d 285).

There are simply too many unresolved and unknown, but relevant, fact issues to grant defendant’s pre-answer motion to dismiss. Actual ownership of the property is unknown, the contracts, if any, between the defendant and the group performing winter maintenance are unknown, the responsibility for summer maintenance, the division of maintenance and design responsibilities, the responsibility for oversight, the existence, nature and precise location of the alleged “stump” and how the “stump” was created are also unknown. Compensation paid by the claimant’s decedent, or others, to use the trail is unknown. Additionally, and importantly, the nature of the facility or property is unknown - that is, is the property subject to the protection of General Obligations Law § 9-103 or is it a supervised structured park facility not even subject to the statutory protection (see Ferres v City of New Rochelle, 68 NY2d 446).

Accordingly, defendant’s motion to dismiss and/or for summary judgment is denied in all respects. And, as noted previously, claimant’s motion to amend the claim is denied.



January 8, 2008
Utica, New York

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




[1]. While the caption names both the State of New York and the New York State Office of Parks, Recreation and Historic Preservation as separate defendants, the latter is a department of the former. As a result, there is in fact only one defendant - the State of New York.