New York State Court of Claims

New York State Court of Claims

BULLARD v. THE STATE OF NEW YORK, #2009-031-009, Claim No. 114509, Motion Nos. M-75735, CM-75984


Synopsis


Claimant’s notice of intention adequately identified the place where the claim arose as required by Court of Claims Act § 11(b). Defendant’s motion for dismissal of the claim is denied. Claimant’s motion for permission to file a late claim is denied as moot

Case Information

UID:
2009-031-009
Claimant(s):
ANTHONY BULLARD
Claimant short name:
BULLARD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114509
Motion number(s):
M-75735
Cross-motion number(s):
CM-75984
Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
CRAIG J. J. SNYDER, P.C.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 4, 2009
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 8, were read on motion by Defendant for dismissal of the claim, and on cross-motion by Claimant for permission to file a late claim:
  1. Defendant’s Notice of Motion (M-75735), filed October 14, 2008;
2) Affirmation of Thomas G. Ramsay, Esq., dated October 9, 2008, with attached exhibits;
3) Claimant’s Notice of Cross-Motion (CM-75984), filed December 12, 2008;
4) Affidavit of Anthony Bullard, sworn to November 25, 2008;
5) Affirmation of Craig J. J. Snyder, Esq., dated December 10, 2008, with attached exhibits;
6) Claimant’s Memorandum of Law, dated December 8, 2008;
7) Reply Affirmation of Craig J. J. Snyder, Esq., dated December 16, 2008, with attached exhibits;
8) Reply Affirmation of Thomas G. Ramsay, Esq., dated December 16, 2008, with attached exhibit. In his claim, filed on November 20, 2007, Claimant, who was confined at Attica Correctional Facility at the time, alleges that between May 20 and June 7, 2007, Defendant’s negligence permitted another inmate access to Claimant’s cell. This other inmate allegedly sexually assaulted Claimant on four occasions, the last being June 7, 2007.

With this motion Defendant seeks dismissal of the claim, arguing that the notice of intention served by Claimant while he was still pro se, is defective. Specifically, Claimant did not indicate that the assault occurred at Attica Correctional Facility. Defendant asserts that Claimant’s description of the location of the incident was insufficient to enable it to conduct an adequate investigation.

The Court of Claims Act (“CCA”) § 11(b) requires a claim or a notice of intention to state the time when and place where it arose. This is a substantive jurisdictional requirement (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).

With regard to the adequacy of the allegations concerning where the assault occurred, 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). "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).

There are several clear 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 the 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 Heisler (78 AD2d 767, supra), the Appellate Division, Fourth Department, provided guidance on this issue stating: "[w]hat is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State."

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), 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 granted Defendant’s motion to dismiss.

Defendant has correctly cited cases in which it has been determined that either the claim or the notice of intention, though identifying the facility in question, was still considered to lack the requisite specificity as to the location of the incident. Defendant has submitted to the Court and Claimant two unreported cases, apparently on point: Santiago v State of New York (Ct Cl, November 24, 2004 [Claim No. 107166, Motion M-69030], Hudson, J.) and Smith v State of New York (Ct Cl, May 2, 2008 [Claim No. 111639, Motion M-74602], Hudson, J.). Here, it is true that, in his notice of intention, Claimant did not even identify the correctional facility within the State where the incident occurred. However, he does allege that on June 7, 2007 (and a few weeks before), he was sexually assaulted in his cell. Claimant is an inmate committed to the care and custody of the State of New York. He has set forth that on a specific date, at a specific time, he was assaulted in the cell assigned to him by Defendant. I find that Defendant has failed to demonstrate that the location specified in the notice of intention lacked sufficient specificity so as to “mislead, deceive or prejudice the rights of the State" (Heisler at 767). Accordingly, I must deny Defendant’s motion.

Of course, the denial of Defendant’s motion renders Claimant’s cross-motion for permission to file a late claim moot. I note, however, that I would have granted that relief as Defendant’s opposition that Claimant failed to show notice, was insufficient to deny the motion. Although notice of the alleged previous incidents may be indicative of a more disturbing or systemic problem, it does not negate Claimant’s allegations of Defendant’s negligence (regardless of notice) in opening Claimant’s cell, and then locking it again without checking to see if Claimant left or if any other inmates entered.

Accordingly, it is hereby

ORDERED, that Defendant’s motion for dismissal of the claim is denied. And it is further,

ORDERED, that Claimant’s cross-motion for permission to file a late claim is denied as moot.

February 4, 2009
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims