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
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
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
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.