New York State Court of Claims

New York State Court of Claims

BUSSEY v. STATE OF NEW YORK, #2008-038-621, Claim No. 113276, Motion No. M-75351


Defendant’s motion to dismiss granted. Notice of Intention lacked sufficient detail, and thus did not extend the 90-day period for filing and service of claim.

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 5, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim on January 29, 2007 seeking to recover damages for injuries allegedly sustained as a result of defendant’s negligence. The claim alleges that claimant had surgery on his right shoulder at a non-party hospital on June 17, 2005, and that on various occasions in June, July and August of 2005, defendant’s employees failed to, or improperly, removed sutures from claimant’s right shoulder. Defendant moves to dismiss the claim on jurisdictional grounds. Specifically, defendant contends that the notice of intention does not comply with Court of Claims Act § 11. Claimant opposes the motion. A claim must be served upon the Attorney General and filed within 90 days of the accrual of the claim (Court of Claims Act § 10 [3]). Alternatively, service within that same time period of a notice of intention to file a claim will extend the deadline to file and serve a claim to two years after its date of accrual (id.). Court of Claims Act § 11(b) requires, among other things, that the claim and a notice of intention to file a claim “shall state the time when and place where such claim arose, [and] the nature of same.” This statutory requirement is a substantive condition of the State’s waiver of immunity from suits for money damages, and it must be strictly construed (Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]). The failure to satisfy this requirement of Court of Claims Act § 11(b) constitutes a defect in subject matter jurisdiction (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Harper v State of New York, 34 AD2d 865 [3d Dept 1970]). While the notice of intention will not be subject to the same high level of scrutiny directed to a pleading (see Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 [1998]), it must nevertheless be “reasonably specific so as to enable the State to ‘conduct a meaningful investigation’” (id. quoting Cannon v State of New York, 163 Misc 2d 623, 626 [Ct Cl 1994]; see also Lepkowski v State of New York, supra at 207). Service of a notice of intention that lacks sufficient specificity will not extend the 90-day period within which to file and serve the claim (see McNiece v State of New York, et al., UID #2008-031-042, Claim No. 112388, Motion No. M-75053, Minarik, J. [Sept. 8, 2008]; see also Femminella v State of New York, UID # 2008-041-038, Claim No. 115276, Motion No. M-75149, Milano, J. [Oct. 3, 2008]).

Here, the verified notice of intention that was served upon the Attorney General on August 24, 2005 stated the following:

The Claim Arose On or About June 22nd 2005 At Approx 6:30 A.M. And Several Other Dates To Be Included In Claim At Upstate Corr. Facility When The Following Event Occured: Medical Care Provided For Claimant Was “Negligent” And The Action By State Employees Has Resulted In Pain And Suffering And Mental Anguish. (Cagino Affirmation, Exhibit B).

This notice of intention manifestly lacks sufficient specificity to allow defendant to conduct a meaningful investigation of the potential claim (see Sega v State of New York, supra at 754; see also, Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998]; Scorzello v State of New York, UID # 2008-041-023, Claim No. 115254, Motion No. M-75073, Milano, J. [July 14, 2008]). It is worth noting that, in opposition to the motion, claimant does not dispute the insufficiency of the notice of intention, but argues the merits of the claim. Because the notice of intention is insufficient, it did not extend claimant’s time to serve and file the claim beyond the 90 days required by Court of Claims Act § 10(3), and thus, the claim filed on January 29, 2007 was untimely. Accordingly, it is

ORDERED, that Motion No. M-75351 is GRANTED, and Claim No. 113276 is DISMISSED.

November 5, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 113276, filed January 29, 2007;

(2) Verified Answer, filed February 1, 2007;

(3) Notice of Motion to Dismiss, dated August 6, 2008;

(4) Affirmation of Paul F. Cagino, AAG, dated August 6, 2008, with Exhibits A-D;

(5) Claimant’s Answer to Notice of Motion to Dismiss, dated August 11, 2008