New York State Court of Claims

New York State Court of Claims

VEGERANO v. STATE OF NEW YORK, #2009-018-021, Claim No. 115866, Motion No. M-75961


Claim dismissed pursuant to CCA § 11(b).

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:
Attorney General of the State of New York
By: Thomas Trace, Esquire Senior Attorney
Third-party defendant’s attorney:

Signature date:
March 24, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a motion to dismiss the claim on the grounds that the notice of intention

failed to comply with the requirements of Court of Claims Act § 11(b) and the claim was not served by certified mail, return receipt requested. Claimant opposes the motion.

On May 27, 2008, a notice of intention was received by the Attorney General’s office by certified mail, return receipt requested. The notice of intention sets forth the following regarding the nature of the claim, and the place and date it arose:

The nature of the claim is for negligence and medical malpractice,

as well as for other and further claims as will arise during the

submittal [sic] of the verified complaint at a later date.

The place where the claim arose is Riverview Corr. Facility.

The claim arose on the 9th day of May, 2008.

Court of Claims Act § 11(b) requires that a notice of intention like a claim, set forth the time when and the place where such claim arose and the nature of same. A notice of intention, need not meet these statutory requirements with “[a]bsolute exactness,” but what is required is a statement made with sufficient definiteness to enable the State to investigate the allegations promptly to ascertain its liability under the circumstances and to not mislead, deceive or prejudice the rights of the State (Heisler v State of New York, 78 AD2d 767, 767-768; Grumet v State of New York, 256 AD2d 441). “A notice of intention will be sufficient if it provides the State with fair and timely notice of those facts necessary to conduct a meaningful investigation.” (Cannon v State of New York, 163 Misc 2d, 623, 626; Schwartzberg v State of New York, 121 Misc 2d 1095, affd 98 AD2d 902). “In short, substantial compliance with section 11 is what is required.” (Heisler, 78 AD2d at 767).

Here, the notice of intention Claimant served upon the Attorney General fails to provide any facts describing what the State allegedly did wrong. Merely providing a date and alleging medical malpractice and negligence is insufficient. Claimant needs to provide some factual information by which the State could identify how it allegedly committed medical malpractice or was negligent (see DeHart v State of New York, 92 Misc 2d 631 [nothing in notice of intention denotes any legal theory or act or omission attributable to the State]; Parmes v State of New York, Ct Cl, Marin, J., dated June 2, 2006, Claim No. 111955, Motion No. M-71412 [UID # 2006-016-042], [notice of intention is vague and general and fails to set forth what the State did wrong]; Allen v State of New York, Ct Cl, Patti, J., dated December 31, 2001, Claim No. 103513, Motion Nos. M-63467, CM-63604 [UID# 2001-013-032], [notice of intention that provides only the date and time of day claimant was injured and a description of the injury suffered was not sufficient]; Wheeler v State of New York, Ct Cl, Collins, J., dated June 15, 2001, Claim No. 103821, Motion No. M-63282 [UID#2001-015-159], [allegation that claimant was injured in a knife attack in a hallway at a correctional facility by an unidentified assailant without any specific allegation of negligence was not sufficient]).

Claimant’s notice of intention did not comply with the requirements of Court of Claims Act § 11(b) and is therefore jurisdictionally defective. The notice of intention failed to extend the time for Claimant to file and serve a claim (Court of Claims Act § 10[3]). Claimant’s claim was not served within 90 days of the date of accrual and is therefore untimely and must be dismissed. Moreover, Claimant served his claim by regular mail, not certified mail, return receipt requested as required by Court of Claims Act § 11(a)(i). Service by regular mail is not service sufficient to commence an action in this Court, and the Court cannot ignore the service defect (see Bogel v State of New York, 175 AD2d 493, 494; Diaz v State of New York, 174 Misc 2d 63, 64).

Based upon the foregoing, the Court GRANTS Defendant’s motion and the claim is DISMISSED.

Claimant, in his affidavit in opposition to Defendant’s motion, makes a passing request that the Court, if Defendant’s motion is granted, “fix the issue and permission to file a late claim”[1] [sic]. Claimant has not made a proper application for consideration as a Court of Claims Act § 10(6) late claim motion. Claimant must provide a notice of motion requesting late claim relief, and set forth facts addressing the factors the Court must consider in determining a late claim motion. Accordingly, the Court will not address this request at this time; however, Claimant may file a proper late claim motion in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims.

March 24, 2009
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affirmation of Thomas M. Trace, Esquire, Senior Attorney, in support, with exhibits attached thereto.

3. Affidavit of Edwin Vegerano, sworn to December 20, 2008, in opposition, with exhibits attached thereto.
  1. Reply Affirmation of Thomas M. Trace, Esquire, Senior Attorney dated December 31, 2008, with exhibit attached thereto.

[1]. Claimant’s affidavit in opposition, page 3, paragraph 8.