New York State Court of Claims

New York State Court of Claims



Claimants’ 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). This rendered the claim both untimely and jurisdictionally defective. Defendant’s motion for dismissal of the claim is granted

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
Assistant Attorneys General
Third-party defendant’s attorney:

Signature date:
September 8, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read on motion by Defendant, State of New York, for dismissal of the claim:
  1. Defendant’s Notice of Motion, filed June 3, 2008;
2) Affirmation of James L. Gelormini, Esq., dated June 2, 2008, with attached exhibits;
3) Affidavit of William Clifford, sworn to May 30, 2008;
4) Defendant’s Memorandum of Law, dated June 2, 2008, with attachment;
5) Affirmation of Christopher S. Ciaccio, Esq., dated August 12, 2008, with attached exhibit;
6) Reply Affirmation of Thomas G. Ramsay, Esq., dated August 19, 2008, with attached exhibits. I have before me Defendant’s motion to dismiss the claim for failing to adequately describe the place where the accident underlying the claim occurred. In his claim filed on June 1, 2006, Mr. McNiece alleges a negligence cause of action for injuries he incurred on the New York State Canal “towpath” on June 1, 2004. The accident occurred while Claimant was rollerblading. Mr. McNiece alleges that he tripped over a part of the canal path that had been deformed by tree roots and that Defendant was negligent in not preventing the damage or for not repairing the damage. According to the notice of intention, which was served upon Defendant on August 30, 2004, Claimant asserts that the accident occurred “along the Erie Canal ‘towpath’ eastbound, west of Clover Street, east of the Jewish Community Center.” In his claim, Mr. McNiece identifies the location of his accident with exactly the same words, but also attaches a photograph which he alleges depicts the area of his fall.

Defendant asserts that both the notice of intention and claim are defective because each 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 William Clifford, the section Superintendent of canal lands in the counties of Monroe, Orleans and Niagara. Mr. Clifford states that the location identified in the claim and notice of intention, the area west of Clover Street and east of the Jewish Community Center, consists of approximately 5,800 feet of towpath. According to Mr. Clifford, the written description of the location as set forth in Claimant’s notice of intention and claim was not specific enough to permit Defendant to determine where Claimant was injured. With regard to the black and white photograph attached to the claim, Mr. Clifford asserts that the photograph is of no assistance in locating the place where the Claimant fell because “[t]he scene depicted . . . is very similar to approximately a dozen different locations along the Erie Canal towpath” (Clifford aff., par. 5).

Whether a claim or notice of intention contains sufficient information to comply with Court of Claims Act § 11(b) has been the subject of frequent motion practice. A personal injury claim is required to state the time when and place where it arose, the nature of the claim, and the items of damage or injuries claimed to have been sustained. A notice of intention for that cause of action is required to contain the same information, except for the items of damage or injuries. These are substantive jurisdictional requirements (see 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, 499).

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 precedents which must be considered in determining whether or not Claimant’s notice of intention 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 498, supra), 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 “ ‘[e]very 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).

In opposition to Defendant’s motion, Claimant argues that there are no manmade or natural markers which “would have allowed the Claimant to identify where the accident happened” (Ciaccio Affirm., par. 4). Further, Claimant’s counsel attaches a photograph to his affirmation (implicitly the same as that attached to the claim except in color) and points out that, at his deposition, Mr. Clifford was able to identify the area depicted in the photograph as a specific location on the towpath which had been patched and repaired on several occasions. Claimant argues, therefore, that Defendant could not have been prejudiced by any lack of specificity in the notice of intention or claim.

Defendant points out, however, that the photograph attached to counsel’s affirmation is not the photograph that enabled Mr. Clifford to identify a specific location on the towpath. The photograph that Mr. Clifford did recognize (deposition exhibit 7, and exhibit A in the Ramsay Reply Affirm.) was not the photograph attached to the claim. "It 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).

Here, I find that Claimant’s written description of the accident location as contained in the notice of intention was clearly insufficient to permit the State to conduct any sort of meaningful investigation. It could have represented any area along that 5,800 foot stretch of towpath. Accordingly, the notice of intention was defective. For this reason, it is important to note that, even if the location were described more specifically in the claim and the photograph attached to the claim gave a clear indication of the exact location of the accident, the claim would still be untimely because the defective notice of intention did not extend the time within which Claimant could properly serve and file his claim.

In any event, I note that in addition to Mr. Clifford’s uncontradicted sworn statement that the photograph attached to the claim is of no assistance in identifying the location of Claimant’s accident, Claimant himself, when testifying about that same photograph at his deposition, was unable to identify the location of his fall. When asked if the bump that caused him to fall was depicted in that photograph, Claimant responded “I can’t be sure” (McNiece Dep. Testimony, p. 36 line 2, Exhibit B to Ramsay Reply Affirm.). I am therefore constrained by existing precedent and find that, in addition to being untimely, the claim is defective because it does not comply with Court of Claims Act § 11(b). Accordingly, I must grant Defendant’s motion.

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 8, 2008
Rochester, New York

Judge of the Court of Claims