Claim was dismissed as notice of intention failed to adequately describe the location of the subject accident for the purposes of §11.b of the Court of Claims Act.
|Claimant short name:||GARCIA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the sole properly named defendant here is the State of New York.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Lipsig, Shapey, Manus & Moverman, P.C.
By: Carmine J. Goncalves, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Cheryl Rameau, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||June 4, 2009|
|See also (multicaptioned case)|
Claimant Alfredo Garcia moves for an order: (1) deeming his amended notice of intention to file a claim as timely served; (2) granting him leave to file an amended claim; and (3) dismissing defendant's fifth and sixth affirmative defenses. Defendant cross-moves for an order dismissing the claim on the ground that the notice of intention and the claim fail to adequately state the location of the incident, which is the basis of the aforementioned affirmative defenses. Mr. Garcia's claim arises from a February 5, 2008 incident in which he allegedly fell through a hole in the floor while working in a building at Creedmoor Psychiatric Center in Queens.
The notice of intention, which was served on defendant on May 5, 2008, describes the location of the accident as follows:
. . . in the basement level of one of the buildings located at Creedmoor Psychiatric Center, 79-25 Winchester Boulevard, Queens Village, NY 11427. If respondents are unable to locate the accident site and conduct a reasonable investigation, please notify [claimant's attorney], whereupon we will provide you with additional information to enable you to locate the accident site.(2)
On or about June 6, 2008, claimant served defendant with a claim, which described the location of the accident as follows:
. . . [Creedmoor Psychiatric Center], located at 79-25 Winchester Boulevard, Queens Village, County of Queens, City and State of New York, including the newly constructed buildings, more particularly, the newly constructed building know as "Building 30", its floors and infrastructure located at the aforementioned premises.(3)
The claim also describes the hole as being "on the first floor of said building." See id. at ¶30.
Claimant does not dispute defendant's assertion that there is not in fact a Creedmoor building known as "Building 30," which is apparently why claimant set forth a third and different description of the accident location in an "Amended Notice of Intention to File Claim" served on defendant on February 20, 2009. There, the location of the accident is described as follows:
. . . in the most south and east of the unfinished buildings of the Bernard Fineson DDSO - Replacement Facility at Hillside Campus located within Creedmoor Psychiatric Center, 79-25 Winchester Boulevard, Queens Village, NY 11427. If respondents are unable to locate the accident site and conduct a reasonable investigation, please notify [claimant's attorney], whereupon we will provide you with additional information to enable you to locate the accident site.(4)* * *
Section 11.b of the Court of Claims Act requires a claim arising from personal injury to 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 . . ." Such section also provides that a notice of intention to file such a claim "shall set forth the same matters except that the items of damage or injuries . . . need not be stated." In Kolnacki v State of New York, 8 NY3d 277 (2007), the Court of Appeals held that the failure to state any of the foregoing items renders a claim jurisdictionally defective.
As set forth above, the notice of intention in the instant case described the location of Garcia's accident only as "one of the buildings" at Creedmoor Psychiatric Center, and directed that further information to "enable you to locate the accident site" could be obtained by contacting claimant's attorney. Defendant is not required to go beyond the four corners of the notice of intention to ascertain information that should have been set forth pursuant to §11.b. See, e.g., Knight v State of New York, Ct Cl, April 18, 2008 (unreported, claim no. 112172, motion no. 73625, UID #2008-018-621(5) , Fitzpatrick, J.) As to the accident having occurred in "one of the buildings," claimant does not dispute defendant's assertion that Creedmoor consists of seven buildings. Under the circumstances, I cannot find that claimant has adequately stated the location of his accident in his notice of intention for the purposes of §11. See, e.g., Cobin v State of New York, 234 AD2d 498 (2d Dept 1996), lv dismissed 90 NY2d 925 (1997). Accordingly, the court lacks jurisdiction over the claim of Alfredo Garcia.
With respect to claimant's attempt to amend his notice of intention to comply with §11, this Court is without authority to permit the amendment of a notice of intention to file a claim. See, e.g., Blahut v State of New York, Ct Cl, January 20, 2004 (unreported, motion no. M-67426, UID #2004-031-007, Minarik, J.); Williams v State of New York, Ct Cl, October 17, 2006 (unreported, motion no. M-71757, UID #2006-028-590, Sise, J.); Jackson v State of New York, Ct Cl, January 10, 2007 (unreported, motion no. M-72630, UID #2007-029-001, Mignano, J.). Accordingly, having reviewed the submissions(6) , IT IS ORDERED that motion no. M-76421 be denied, that cross-motion no. CM-76481 be granted and that claim no. 115441 be dismissed.
The requirement that the Court of Claims Act be strictly construed dictates the above result. However, the Act does contain a provision under which claimant is entitled to move for permission to file a late claim (§10.6).
June 4, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. See pp. 1-2 of claimant's notice of intention, annexed to his moving papers as exhibit A.
3. See ¶9 of the claim, annexed to claimant's moving papers as exhibit B.
4. See p. 1 of claimant's "Amended Notice of Intention to File Claim," annexed to his moving papers as exhibit D. Claimant's proposed amended claim describes the location of the accident only as "the unfinished buildings of the Bernard Fineson DDSO - Replacement Facility at Hillside Campus," and further refers to "the hole on the first floor of said building." See ¶¶12 and 33 of the proposed amended claim which is annexed to claimant's moving papers as exhibit E.
5. This and other decisions of the Court of Claims may be found on the court's website: www.nyscourtofclaims.state.ny.us.
6. The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A through F; defendant's notice of cross-motion with affirmation in support and opposition and exhibits A through I; and claimant's "Affirmation in Further Support and in Opposition to Cross-Motion."