New York State Court of Claims

New York State Court of Claims

PALIS v. THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION, #2008-047-001, Claim No. 114738, Motion Nos. M-75370, CM-75518


Synopsis


In a proceeding to recover damages for personal injuries allegedly sustained as a result of a trip


and fall on an unprotected catch basin on an overpass, the Claimant’s motion pursuant to CPLR


§3215(a) for a default judgement as against the New York State Department of Environmental


Conservation (“DEC”) and the New York State Department of Transportation (“DOT”) is


denied. The defendant’s cross motion to dismiss the claim against DEC and DOT for lack of


jurisdiction and the claim against the State for failure to comply with the specificity requirements


if Court of Claims Act §11(b) is granted to the extent DEC and DOT and amending the caption


to reflect such dismissal and denying the cross motion in all other respects.

Case Information

UID:
2008-047-001
Claimant(s):
JIMMY PALIS
Claimant short name:
PALIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114738
Motion number(s):
M-75370
Cross-motion number(s):
CM-75518
Judge:
O. PETER SHERWOOD
Claimant’s attorney:
SULLIVAN PAPAIN BLOCK McGRATH & CANNAVO, P.C.By: John F. Nash, Esq.1 1.On October 10, 2008, a Consent to Change Attorney was filed with the Clerk of the Court thereby substituting the firm of Sullivan Papain Block McGrath & Cannavo, P.C. as attorneys of record for the claimant in place and stead of the firm of Hach & Rose, L.L.P.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERAL
By: Ralph J. Bavaro, Assistant Attorney General and
Gwendolyn Hatcher, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 19, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves pursuant to CPLR § 3215 (a) for a default judgment against the New


York State Department of Environmental Conservation and the New York State Department of


Transportation. Defendant State of New York cross moves to dismiss the claim against the New


York State Department of Environmental Conservation and the New York State Department of


Transportation pursuant to CPLR §§ 3211 and/or 3212 for lack of jurisdiction and the claim


against the State for claimant’s failure to comply with the specificity requirements of Court of


Claims Act § 11 (b).

The following papers were considered by the Court on claimant’s motion for a default


judgment and defendant’s cross motion to dismiss:


1. Notice of Motion, dated July 24, 2008 and filed August 4, 2008, and Affirmation in


Support of Michael A. Rose, Esq. of Hach & Rose, L.L.P., dated July 24, 2008 and filed August


4, 2008, with annexed Exhibits A-C.


2. Notice of Cross Motion, dated September 10, 2008 and filed September 11, 2008, and


Affirmation in Support of Cross Motion and in Opposition to Motion of Gwendolyn Hatcher,

Assistant Attorney General, dated September 10, 2008 and filed September 11, 2008, with


annexed Exhibits A-B.


3. Affirmation in Opposition to Cross Motion of John F. Nash, Esq. of Sullivan Papain

Block McGrath & Cannavo, P.C., dated and filed September 16, 2008, with annexed Exhibits 1- 4.
On November 9, 2007, at approximately 3:30 a.m., the claimant was injured when he allegedly tripped and fell in an uncovered and unprotected hole or catch basin on an overpass over the Cross Island Parkway/Whitestone Expressway. The claimant thereafter brought this action against the New York State Department of Environmental Conservation (“DEC”), the New York State Department of Transportation (“DOT”) and the State of New York (“the State”) (collectively “defendants”) alleging that the area where the accident occurred was “maintained, directed and controlled” by defendants and that he was injured as a result of the defendants’ negligent failure to properly maintain the area where the accident occurred.

The instant claim, served and filed on January 24, 2008, within 90 days of the accrual of the claim pursuant to Court of Claims Act § 10 (3), identifies the place where the claim accrued as “on the grass area abutting the overpass crossing over the Cross Island Parkway/Whitestone Expressway. The overpass is marked by a sign with identifying number 1-678-103 in the County of Queens, City and State of New York.” In its answer, the State alleged that the Court of Claims does not have jurisdiction over the DEC and the DOT and that the Court also lacks jurisdiction because the claim fails to comply with Court of Claims Act § 11 “by failing to include an adequate description of the location of the incident alleged in the claim”.

Claimant’s former counsel made a motion for a default judgment as against defendants DEC and DOT on the ground that no answer or appearance had been made on behalf of these entities within the requisite thirty-day period (CPLR § 3012 [c]) nor had an extension of time within which to appear or answer been granted.

The State on its cross motion seeks to dismiss the claim as against the DEC and the DOT on the ground that the Court does not have jurisdiction over them as entities distinct from the State. In his affirmation in opposition to the cross motion, claimant’s counsel essentially concedes that as departments of the State, neither the DEC or the DOT has independent legal existence (see, Court of Claims Act §9). Thus, it is clear that there is only one defendant, namely, the State.

Defendant also seeks to dismiss the claim of Jimmy Palis on the ground that this Court lacks subject matter jurisdiction because the claim fails to adequately describe the location of the accident or provide an adequate description of the defect that allegedly caused the accident. In opposing the motion, claimant contends that the claim describes the nature of the accident and the place where the accident occurred sufficiently to have enabled the State to investigate the claim if it chose to do so.

Section 11 (b) of the Court of Claims Act provides that a claim “shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed.” Absolute exactness is not required. Rather, the guiding principle informing the requirements of section 11 (b) is that the State be provided with a sufficiently detailed description of the particulars of the claim so as to enable the State to investigate the claim promptly and to ascertain the extent, if any, of its liability (see, Lepkowski v State of New York, 1 NY3d 201, 207 [2003]). The defendant is not required to go beyond the claim and ferret out information which should be provided pursuant to the Court of Claims Act (id. at 208). On the other hand, the claimant is not required to actually conduct an investigation and provide the results to the defendant in its claim.

Upon an application of the foregoing principles and review of the claim, the Court finds that the description of the site and nature of the accident is alleged with sufficient particularity to satisfy the requirements of section 11 (b). Accordingly, it is

ORDERED
, that claimant’s motion for a default judgment (motion no. M-75370) is denied; and it is further

ORDERED, that the branch of defendant’s cross motion (cross motion no. CM-75518) as seeks to dismiss the claim against the Department of Environmental Conservation (“DEC”) and the Department of Transportation (“DOT”) is granted, claim no. 114738 is dismissed as against DEC and DOT, and the caption is amended to reflect such dismissal and shall read as follows:

______________________________________

JIMMY PALIS

,
Claimant,
Claim No. 114738
-v-

THE STATE OF NEW YORK

,

Defendant.
_
_____________________________________


The Clerk of the Court is directed to amend the records accordingly.



November 19, 2008
New York, New York

HON. O. PETER SHERWOOD
Judge of the Court of Claims