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