New York State Court of Claims

New York State Court of Claims
ACEE v. THE STATE OF NEW YORK, # 2009-031-051, Claim No. 114896, Motion No. M-76658, Cross-Motion No. CM-76752


Claimant's notice of intention failed to adequately identify the place where she slipped and twisted her knee, as required by Court of Claims Act 11(b). The notice of intention is, therefore, a nullity and did not extend the time within which a claim could be filed. Subsequently, the claim must be dismissed as untimely. Claimant's cross-motion for summary judgment is denied as moot.

Case information

UID: 2009-031-051
Claimant(s): MARY ANN ACEE
Claimant short name: ACEE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114896
Motion number(s): M-76658
Cross-motion number(s): CM-76752
Claimant's attorney: FELT EVANS, LLP
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 28, 2009
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Defendant for dismissal of the claim and claimant's cross-motion for summary judgment:

1) Defendant's Notice of Motion (M-76658), filed May 7, 2009;

2) Affirmation of Thomas G. Ramsay, Esq., dated May 6, 2009, with attached exhibits;

3) Claimant's Notice of Cross-Motion (CM-76752), filed June 1, 2009;

4) Affirmation of Jay G. Williams, III, Esq., dated May 22, 2009, with attached exhibits;

5) Reply Affirmation of Thomas G. Ramsay, Esq., dated June 3, 2009;

6) Reply Affirmation of Jay G. Williams, III, Esq., dated June 12, 2009.

I have before me Defendant's motion to dismiss the claim, and Claimant's cross-motion for summary judgment. In her claim, filed on February 25, 2008, Ms. Acee alleges that she was injured in a slip and fall at Groveland Correctional Facility ("Groveland") on August 5, 2007.

With this motion, Defendant asserts that the notice of intention to file a claim, served on November 2, 2007, failed to identify the location of Claimant's accident with sufficient specificity. In her cross-motion, Claimant argues that there is no question of fact as to Defendant's liability for her injury. I will address Defendant's motion first.

The notice of intention describes the location of the incident simply by stating that it occurred in the parking lot at Groveland, near the gate to the entrance of the facility (Defendant's Exhibit A). However, during depositions in this matter, it was learned that Claimant's incident did not occur in the Groveland parking lot. Rather, it occurred on the perimeter road which surrounds the facility.

Court of Claims Act ("CCA") 11(b) requires that a claim state the time when and place where it arose, the nature of the claim, and the items of damage or injuries claimed to have been sustained. A notice of intention is required to contain the same information, except for the items of damage. These are substantive jurisdictional requirements (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, 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). 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 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 Cobin v State of New York (234 AD2d 498, 499), 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 - 460), 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.

In Grande v State of New York (160 Misc 2d 383), the Court of Claims (Judge Silverman) found that identifying the highway and the municipality in which the accident occurred was insufficient. Also, the claimant's filing of a form with the New York State Department of Transportation, indicating the exact location of the accident, was not sufficient to satisfy the notice requirement because the State was not required to go beyond the claim or notice of intention in order to investigate the occurrence or to ascertain information which should have been provided in the claim.

In Sega v State of New York (246 AD2d 753, 755), the Appellate Division, Third Department, cited Cannon v State of New York (163 Misc 2d 623) for the proposition that "[e]very element in a notice of intention need not be set forth with formalistic rigidity and it should not be scrutinized as strictly as a pleading." Yet, the Court still went on to dismiss the claim in which the notice of intention identified the location of the accident as occurring "on Route 7 West of the Village of Richmondville, in the Town of Richmondville, County of Schoharie."

I note that, in opposition to Defendant's motion, Claimant argues that Defendant could not have been prejudiced by any lack of specificity in the notice of intention because the incident was immediately reported to employees of Defendant and reports of the incident were in Defendant's possession, even before the notice of intention was served. However, "[i]t is axiomatic that the sufficiency of a claim [or notice of intention] 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). Further, the lack of prejudice is not a factor with regard to determining jurisdictional questions in the Court of Claims (Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

Here, Claimant's inaccurate description of the location did not give Defendant adequate notice. In Wilson v State of New York (61 AD3d 1367), it was alleged that a slip and fall occurred on an ice-covered road outside of the draft processing area at Albion Correctional Facility. The Appellate Division, Fourth Department, found this location description insufficient for purposes of CCA 11(b). That description, which was determined to be insufficient, was more specific than the one contained in Claimant's notice of intention.

I find that Claimant's notice of intention failed to adequately set forth the location of the incident as required by CCA 11(b). Accordingly, the notice of intention is a nullity and the claim is untimely, as Claimant failed to serve and file a claim, or serve a valid notice of intention, within 90 days of accrual of the claim as required by CCA 10(3). I am, therefore, constrained by existing precedent to grant Defendant's motion.

Based on the foregoing, it is hereby

ORDERED, that Defendant's motion is GRANTED and the claim is hereby dismissed in its entirety. Claimant's cross-motion is denied as moot.

September 28, 2009

Rochester, New York


Judge of the Court of Claims