New York State Court of Claims

New York State Court of Claims

BUSKEY v. THE STATE OF NEW YORK, #2008-031-041, Claim No. 112828, Motion No. M-75078


Claimant’s notice of intention and claim failed to adequately identify the place where his slip and fall occurred, as required by Court of Claims Act § 11(b). Subsequently, that cause of action is dismissed. Likewise, Defendant has adequately demonstrated that the care given Claimant was timely and in accordance with the direction of outside specialists. Claimant’s cause of action for medical malpractice/neglect must also be dismissed

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 2, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read on motion by Defendant for dismissal of the claim:
  1. Defendant’s Notice of Motion, filed June 9, 2008;
2) Affirmation of James L. Gelormini, Esq., dated June 6, 2008, with attached exhibits;
3) Affidavit of Ronald Conrad, sworn to May 30, 2008;
4) Defendant’s Memorandum of Law, dated June 6, 2008, with attachment;
5) Undated Affirmation of Janice A. Lahman, Esq., filed July 9, 2008, with attached exhibits;
6) Claimant’s Memorandum of Law, dated July 9, 2008. I have before me Defendant’s motion to dismiss the claim. The claim, filed on October 4, 2006, alleges two causes of action. First, Claimant alleges that he was injured in a slip and fall at Groveland Correctional Facility (“Groveland”) on October 5, 2004. Next, Claimant alleges medical malpractice and medical neglect relating to the care and treatment he received for the injuries he suffered in that fall. Defendant alleges independent grounds for the dismissal of each cause of action. With regard to the slip and fall or premises liability cause of action, Defendant argues that Claimant failed to adequately identify the location of his fall with sufficient specificity. With regard to the medical care Claimant received, Defendant argues that Claimant’s care was provided by a third party over which this Court does not have jurisdiction. I will address these arguments in order.
Premises Liability
In his claim, Mr. Buskey describes the location of the incident as having occurred at Groveland on a “downhill” slope of a “paved roadway” (Claim, par. 2a and 3). Prior to service of the claim, Mr. Buskey served a notice of intention to file a claim on Defendant on December 21, 2004. That notice of intention (Gelormini Aff., Ex. 1) indicates that Claimant was working for “facility maintenance at Groveland” and that he was injured “while walking down a graveled incline toward his work area.” No other information concerning the location of the incident is given.

Defendant asserts that both the notice of intention and the claim are defective because they failed to provide sufficient information concerning the location of the incident to permit Defendant to conduct a meaningful investigation. In support of this argument, Defendant has submitted the Affidavit of Ronald Conrad, Plant Superintendent at Groveland. Mr. Conrad states that an inmate assigned to a work crew for facility maintenance at Groveland could work in different locations throughout the facility grounds and that paved roadways/walkways run throughout. In total, a facility maintenance crew worker could be in contact with from 1600 to 2600 linear feet of sloping paved roadways/walkways in any number of locations throughout the facility. According to Mr. Conrad, neither the notice of intention nor the claim identify the location of the incident with enough specificity to permit anyone at Groveland to determine where Claimant was injured. He indicated that the description of the location fits “dozens of locations” within the facility (Conrad Aff., par. 9).

Whether a claim or notice of intention contains sufficient information to comply with (“CCA”) § 11(b) has been the subject of frequent motion practice. A claim is required to state the time when and place where it arose, the nature of the claim, the items of damage or injuries claimed to have been sustained, and the total sum claimed. A notice of intention is required to contain the same information, except for the items of damage and the sum claimed (the ad damnum). These are substantive jurisdictional requirements (Lepkowski v State of New York, 1 NY3d 201) and failure to satisfy this requirement will result in dismissal (Cobin v State of New York, 234 AD2d 498).

With regard to the adequacy of the allegations, the language of the claim or notice of intention must be sufficiently specific to enable the defendant to conduct an investigation and ascertain its potential liability (Heisler v State of New York, 78 AD2d 767). There are several clear precedents which must be considered in determining whether or not Claimant’s notice of intention and claim adequately set forth the location of the incident. In Schneider v State of New York (234 AD2d 357), dismissal of the claim on § 11 grounds was upheld where it was asserted that claimant had fallen in the picnic area adjacent to the parking area at Heckscher State Park. On its motion to dismiss, defendant submitted a map showing a number of picnic areas near a number of parking areas scattered throughout the park. The Court, therefore, determined that the claim was not sufficiently specific.

In Cobin v State of New York (234 AD2d at 499), the court dismissed the claim finding that identifying the site of the accident as “on the boardwalk at Jones Beach, County of Nassau, State of New York, in the East Quarter Circle, or its vicinity” was insufficient to adequately identify the location of the incident. Similarly in Sheils v State of New York (249 AD2d 459, 459 - 460), the Appellate Division, Second Department reviewed a claim which asserted that the location of the incident was on “Route 112/25A in front of the Infant Jesus Church, in Port Jefferson” and attached photographs of the scene showing “a driveway located somewhere on a property with a 1,000-foot frontage on the roadway where the injured claimant fell.” The Court determined that the claim gave insufficient notice of the location to Defendant and affirmed the order granting Defendant’s motion to dismiss.

In Grande v State of New York (160 Misc 2d 383), the Court of Claims (Judge Silverman) found that identifying the highway and the municipality in which the accident occurred was insufficient. Also in that case, the Claimant’s filing of a form with the Department of Transportation indicating the exact location of the accident was not sufficient to satisfy the notice requirement because the State was not required to go beyond the claim or notice of intention in order to investigate the occurrence or to ascertain information which should have been provided in the claim.

In Sega v State of New York (246 AD2d 753, 755), the Third Department held that “ ‘every element in a notice of intention need not be set forth with formalistic rigidity and it should not be scrutinized as strictly as a pleading’ ” (quoting Cannon v State of New York, 163 Misc 2d 623, 626). Yet the Court still went on to affirm the order dismissing the claim which identified the location of the accident as occurring “on Route 7 West of the Village of Richmondville, in the Town of Richmondville, County of Schoharie” (Sega, 246 AD2d at 754).

I note that, in opposition to Defendant’s motion, Claimant argues that Defendant could not have been prejudiced by any lack of specificity in the notice of intention or claim because an unusual incident report was filed shortly after the accident which properly identified the location. Further, Claimant states that he adequately identified the location of the incident in his bill of particulars, which was served approximately three years after the accident in August of 2007. However, "[I]t is axiomatic that the sufficiency of a claim rests solely upon the assertions contained therein, and defendant is not required to go beyond the claim in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act §11 [citation omitted]" (Lepkowski v State of New York, 302 AD2d 765, 766, affd 1 NY3d 201). 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).

Here, Claimant’s vague indication that he fell somewhere on a paved walkway or roadway somewhere within the Groveland grounds was clearly insufficient to permit the State to conduct any sort of meaningful investigation. For this reason, both the notice of intention and the claim are defective as they relate to the premises liability cause of action. I am, therefore, constrained by existing precedent and find that Claimant has failed to comply with CCA § 11(b). Accordingly, I must grant Defendant’s motion and dismiss that portion of the claim.
Medical Malpractice/Neglect
With regard to Claimant’s assertion that he was not provided adequate or timely medical care after his accident, the claim alleges only the following: “Defendant was negligent in providing medical treatment and physical rehabilitation to Claimant. It was not until a week later that Claimant was transferred to the Erie County Medical Center, where he underwent surgery. Defendant did not provide appropriate rehabilitative or physical therapy” (Claim, par. 2b).

Defendant has demonstrated that Claimant received medical treatment immediately after the incident and that he was referred to the Erie County Medical Center (“ECMC”) for care and treatment. It was the ECMC that scheduled Claimant’s X-rays, surgery and follow-up treatment. To the extent that Claimant has been injured because of a delay in treatment or improper treatment at anytime prior to his returning to the facility after his surgery, the negligent party was ECMC. However, ECMC is not a state entity. Any cause of action relating to the medical care Claimant received from ECMC lies against the County of Erie, as the injuries complained of occurred at the hands of Erie County employees. The Court of Claims is a court of limited jurisdiction with power to hear claims only against the State and certain public authorities (CCA § 9). This Court does not have jurisdiction over and may not entertain a claim against either the individuals who worked at ECMC nor the county by which they were employed (see Whitmore v State of New York, 55 AD2d 745, 746, lv denied 42 NY2d 810; Jones v State of New York, 69 Misc 2d 1034).

This leaves only Claimant’s vague allegation that “ Defendant did not provide appropriate rehabilitative or physical therapy” (Claim, par. 2b). However, Defendant’s submissions demonstrate that, upon returning to Groveland after his surgery, Claimant refused to return to ECMC for rehabilitation. After reconsidering his position, Claimant was sent to ECMC for rehabilitation in February of 2005. ECMC directed that he should return in six months, but Claimant was released from prison before that time. Claimant has not disputed Defendant’s contentions relating to the medical care he received. Accordingly, I find that Claimant has failed to set forth a claim for medical malpractice or medical negligence against the State of New York.

Therefore, for the reasons set forth above, it is hereby

ORDERED, that Defendant’s motion is granted. The claim is hereby dismissed in its entirety.

September 2, 2008
Rochester, New York

Judge of the Court of Claims