New York State Court of Claims

New York State Court of Claims

McCALLA v. THE STATE OF NEW YORK, #2008-016-024, Claim No. 113554, Motion Nos. M-74399, CM-74485


Synopsis


Claim adequately stated location of accident and injuries claimed.

Case Information

UID:
2008-016-024
Claimant(s):
SHERLOCK McCALLA
1 1.The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
McCALLA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113554
Motion number(s):
M-74399
Cross-motion number(s):
CM-74485
Judge:
Alan C. Marin
Claimant’s attorney:
Ogen & Associates, P.C.By: Eitan Alexander Ogen, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Cheryl Rameau, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 12, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arises from a January 10, 2007 accident in which claimant, a pedestrian, was struck by a vehicle owned by the State of New York and driven by a State employee. Claimant moves for an order striking defendant’s sixth affirmative defense or, in the alternative, permitting him to “supplement and/or amend his Claim . . .” Defendant cross-moves for summary judgment dismissing the claim. In its sixth affirmative defense, the State maintains that “[t]he claim fails to comply with Court of Claims Act [the “Act”] Section 11 by failing to include the injuries alleged and an adequate description of the location of the incident alleged in the claim . . .”

With regard to the location of the accident, the claim contains a specific address: “Clarkson Avenue and Troy Avenue ([in front of] 681 Clarkson Ave.), Brooklyn, NY.” In any event, on these motions, defendant does not dispute that the accident location was alleged with sufficient particularity for the purposes of §11 of the Act.

What is at issue on these motions is whether Mr. McCalla has stated his injuries as required by §11. Defendant argues that McCalla has “failed to list any injuries whatsoever in his claim.” The court disagrees. The claim, which alleges damages of $2 million, specifically incorporates by reference an attached police report. The report states that McCalla, a pedestrian, was struck by defendant’s car, and indicates that he was injured. In view of the foregoing, I find that claimant has alleged injuries as required by §11 of the Act.

Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-74399 be granted to the extent that defendant’s sixth affirmative defense shall be deemed stricken and such motion shall otherwise be denied. IT IS FURTHER ORDERED that cross-motion no. CM-74485 be denied.


May 12, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [2]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibits A through F; defendant’s “Cross Motion to Dismiss” with affirmation in support; and claimant’s “Affirmation in Opposition to [Defendant’s] Cross Motion and in Further Support of [Claimant’s] Motion.”