|Claimant short name:||VARGAS|
|Footnote (claimant name) :||The caption has been amended sua sponte to reflect the correct spelling of Claimant's first name.|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JEREMIAH J. MORIARTY III|
|Claimant's attorney:||Paul William Beltz, P.C.
By: Joseph J. Marusak, Esq.
|Defendant's attorney:||Hon. Andrew M. Cuomo
New York State Attorney General
By: Wendy E. Morcio
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 19, 2009|
|Official citation:||83 AD3d 1525 (2011)|
|See also (multicaptioned case)|
The following were read and considered with respect to Defendant's motion to dismiss the claim:
1. Notice of motion and supporting affidavit of Assistant Attorney General Wendy E.
Morcio sworn to November 26, 2008, with annexed Exhibits A-C;
2. Supporting affidavit of Marc Prentice sworn to November 24, 2008;
3. Letter dated January 2, 2009 from Assistant Attorney General Wendy E. Morcio;
4. Opposing affirmation of Joseph J. Marusak, Esq. dated April 27, 2009, with annexed
Filed papers: Claim filed October 3, 2005; Answer filed October 19, 2005.
This is an action for personal injuries arising out of an incident which occurred on July 13, 2005, while Claimant was operating his motorcycle on the LaSalle Expressway in Niagara Falls, New York. Defendant brings this motion to dismiss the claim alleging that the claim is jurisdictionally defective because it fails to comply with the requirements of § 11 (b) of the Court of Claims Act.
The State's waiver of its sovereign immunity from suits for monetary damages is contingent upon a claimant's compliance with specific requirements placed on the waiver by the State Legislature (see § 8 of the Court of Claims Act; Lepkowski v State of New York, 1 NY3d 201, 206 ). "[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Among the specific statutory requirements is § 11 (b) of the Court of Claims Act. Section 11 (b) states in relevant part that a claim "shall 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 . . . ." These pleading requirements must be pled with sufficient definiteness to enable the Defendant to investigate the incident promptly and to ascertain its potential liability (Heisler v State of New York, 78 AD2d 767 ).
Defendant alleges that the claim herein fails to specify the exact location of the incident, the time of the incident and fails to allege the manner in which the incident occurred in derogation of § 11 (b) of the Court of Claims Act. Two recent Fourth Department decisions will help to guide the Court in determining whether the allegations in the present claim are sufficiently pled to withstand Defendant's motion to dismiss. The first is Deep v State of New York, 56 AD3d 1260 (2008). In Deep, the claimant was injured in a motor vehicle collision with a State vehicle on February 7, 2005 on Old River Road, in the Town of Marcy, County of Oneida, State of New York, allegedly due to the hazardous and dangerous operation of the vehicle owned by the State of New York and operated by an agent of the State of New York. Initially, the Court of Claims dismissed the Deep claim for lack of jurisdiction, by finding that the claim failed to adequately describe the location of the incident (Deep v State of New York, Ct Cl, June 22, 2007, Siegel, J., claim no. 112729, motion no. M-72915, UID # 2007-042-512).(2) On appeal, however, the Fourth Department reversed and concluded that the description of the specific street where the incident occurred was sufficient to allow the defendant to investigate the claim and determine its potential liability because the claim involved a motor vehicle accident allegedly caused by the negligence of defendant's agent. Moreover, the Fourth Department agreed with the lower Court that claimant had sufficiently particularized defendant's conduct from which its negligence could reasonably be inferred. In fact, the lower court specifically noted that the notice of intention to file a claim in Deep "set forth a litany of at least eighteen different acts by which it is alleged that the defendant was negligent in this collision" (Id.).
Another recent Fourth Department decision to consider is Wilson v State of New York, 61 AD3d 1367 (2009). In Wilson, the claimant, an inmate at a New York State correctional facility, allegedly slipped and fell on ice on a roadway within the correctional facility. The Court of Claims initially denied Defendant's motion to dismiss, finding that the notice of intention to file a claim sufficiently specified the area within the correctional facility where the incident occurred (see Wilson v State of New York, Ct Cl, September 11, 2007, Minarik, J., claim no. 111995, motion no. M-73112, UID # 2007-031-043). On appeal, the Fourth Department reversed and dismissed the claim, finding the notice of intention jurisdictionally defective as it failed to state the year in which the incident occurred and set forth contradictory descriptions of the location of the incident "thereby failing to 'state the time when and place where such claim arose'" (see Wilson v State of New York, supra at 1368, citing § 11 [b]; other citations omitted).
In Deep and in Wilson, the main issue on appeal was the sufficiency of the description of the
location of the incident. In the present case, Defendant argues that both the location and the nature of the claim are insufficiently pled pursuant to § 11 (b) of the Court of Claims Act. Relevant portions of the claim state:
"3. That the facts and circumstances arising out of this claim are as follows:
That on or about July 13, 2005, the claimant, Ritchie [sic] Vargas,(3) was operating a motorcycle on the LaSalle Expressway in Niagara Falls, New York, when he was caused to come into collision, due to the negligence and carelessness of the respondent, State of New York, causing certain severe, permanent and painful injuries to the claimant as hereinafter set forth.
4. Upon information and belief, the negligence and carelessness of the respondent was in improper, inadequate maintenance, repair and upkeep of the roadway in the area of the collision with respect to the repair of the roadway, failing to warn operators of vehicles of the dangerous pavement."
Paragraph 3 of the present claim describes the situs of the incident as being the LaSalle Expressway in Niagara Falls, New York. According to the supporting affidavit of Marc Prentice, Region 5 Claims Coordinator with the New York State Department of Transportation, LaSalle Expressway in Niagara Falls, New York is 2.35 miles of roadway in an easterly direction and another 2.35 miles of roadway in a westerly direction. Mr. Prentice further describes the expressway as having two, twelve-foot wide, lanes of travel and a shoulder in each direction. Nothing in the claim references a mile marker or a cross street to help pinpoint the exact area of the incident. Further, nothing in the claim indicates in which direction or on which lane of travel Claimant was riding. Thus, the incident could have occurred in any lane of travel and anywhere within the 4.7 miles of roadway within Niagara Falls, New York.
In reliance on the Fourth Department's decision in Deep, Claimant argues that the reference in the claim to the specific street where the incident occurred was sufficient to allow the Defendant an opportunity to investigate the incident and to assess its potential liability. But the nature of the claim in Deep was a motor vehicle accident allegedly caused by the negligent driving of Defendant's employee. In the present case, the incident was a single vehicular incident which did not involve another vehicle, much less one driven by an employee of the State. Moreover, the precise location of the incident in Deep was less important than in the present case because the condition of the road in Deep was not germane to the issue of liability. In the present case, however, the condition of the road is germane to the issue of liability and Defendant herein needs a more precise description of the location of the incident in order to investigate the incident and to assess its potential liability. In fact, the present situation is more akin to the situation in Wilson where the Fourth Department granted Defendant's motion to dismiss pursuant to § 11 (b) of the Court of Claims Act. In Wilson, like the present case, the condition of the roadway was germane to the issue of liability and Defendant could not investigate and assess its potential liability without a specific designation as to the location of the incident.
In addition, Defendant alleges that Claimant fails to specify the nature of the claim. "Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet" the requirements of § 11 (b) of the Court of Claims Act (Heisler v State of New York, supra at 767-768). In paragraphs 3 and 4 of the claim, Claimant references a "collision." The word collision at least suggests the involvement of another vehicle. While there is no mention of another vehicle in the claim, there is similarly no mention in the claim that the incident was a single vehicular incident. Paragraph 4 of the claim generally refers to the improper, inadequate maintenance, and repair of the roadway and a failure to warn motorists of the "dangerous pavement." But without a specific location, specific acts of negligence, and a statement as to what constitutes "dangerous pavement," Defendant is unable to investigate the incident or assess its potential liability.
Finally, Claimant argues that any defects in the claim should be overlooked as the exact location and a description of the accident are contained in the Police Accident Report (see Claimant's Exhibit B), and can be gleaned by reviewing New York State Department of Transportation road repair business records (Claimant's Exhibit D). The Court of Claims Act, however, "does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege (citation omitted)" (Lepkowski v State of New York, supra at 208).
While substantial compliance with the pleading requirements of the Court of Claims Act
and not absolute exactness is the standard (Heisler v State of New York, supra at 767-768), this standard does not relieve Claimant of the obligation to set forth in the claim a statement sufficient to identify the location of the incident and the nature of the claim. The Court concludes that the general allegations of negligence in the claim render the claim "jurisdictionally defective for nonconformity with section 11 (b)'s substantive pleading requirements . . ." (Lepkowski v State of New York , supra at 209). Accordingly, it is hereby
ORDERED, that Defendant's motion no. M-75964 is granted and claim no. 111449 is dismissed.
June 19, 2009
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims
2. This and other unreported Court of Claims decisions may be found on the Court's website at www.nyscourtofclaims.state.ny.us.
3. Mr. Vargas' first name has been corrected to properly be "Richie."