New York State Court of Claims

New York State Court of Claims

LITTLE v. THE STATE OF NEW YORK, #2009-038-506, Claim No. 115122, Motion Nos. M-75469, CM-75658


Synopsis


Defendant’s motion to dismiss for untimely service of claim is granted; Claimant’s cross motion to treat the Notice of Intention as the Claim (Court of Claims Act § 10 [8][a]) granted

Case Information

UID:
2009-038-506
Claimant(s):
VIRGINIA LITTLE
Claimant short name:
LITTLE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115122
Motion number(s):
M-75469
Cross-motion number(s):
CM-75658
Judge:
W. BROOKS DeBOW
Claimant’s attorney:
L.A. BEESECKER, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Saul Aronson, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 12, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

This claim alleges that claimant suffered injury on April 18, 2006 when she tripped and fell because of an unrepaired pothole. A Notice of Intention to file the claim was served on the Attorney General on July 10, 2006. The claim was filed with the Clerk of the Court of Claims on April 15, 2008 and a copy was received by the Office of the Attorney General on April 23, 2008. Defendant moves to dismiss the claim for untimely service, and claimant cross-moves for an order pursuant to Court of Claims Act § 10 (8)(a) to treat the Notice of Intention as the claim. Defendant’s motion to dismiss the claim must be granted. When a Notice of Intention to File a Claim that alleges personal injury due the negligence of the State is served upon the Attorney General within 90 days of accrual of the claim, the time within which to serve and file the claim is extended to two years from the date of accrual (see Court of Claims Act § 10 [3]). Here, it is undisputed that a Notice of Intention to File the Claim was timely served, and that the claim itself was timely filed with the Court. Defendant’s motion to dismiss is based upon the fact that the claim was not served on the Attorney General within two years after April 18, 2006. Claimant asserts that the claim was posted, by certified mail, return receipt requested, on April 14, 2008 (see Affirmation of L.A. Beesecker, Esq., Exhibit 1). However, service on the Attorney General is not complete until received by the Attorney General (see Court of Claims Act § 11[a][i]). Notwithstanding claimant’s timely mailing of the claim, defendant submits undisputed proof that the claim was not received until April 23, 2008 (see Aronson Affirmation in Support of Motion to Dismiss, Exhibit B; Aronson Affirmation in Opposition to Cross-Motion, ¶ 3), clearly more than two years after accrual of the claim.

It is well established that the filing and service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and that the failure to comply with those requirements is a jurisdictional defect requiring dismissal of the claim (see id.; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]). Thus, because the claim was not served upon the Attorney General within two years of April 18, 2006, the claim must be dismissed as jurisdictionally defective.

Turning to claimant’s cross motion for an order pursuant to Court of Claims Act § 10(8)(a) to treat the Notice of Intention as the claim, such relief is permitted when: (1) the motion is made before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the CPLR; (2) the Notice of Intention was timely served; (3) the Notice of Intention contains facts sufficient to constitute a claim; and (4) the granting of the application would not prejudice the defendant. Here, the motion is timely in that it was made within three years of the accrual of the claim (see CPLR 214 [5]), and there is no dispute that the Notice of Intention was timely. Defendant bootstraps together the requirements that the Notice of Intention contain sufficient facts and that defendant would suffer prejudice by arguing, without further elaboration, that “[d]efendant stands to suffer prejudice if the motion is granted since both the Notice of Intent [sic] and Claim fail to adequately describe the alleged pothole condition or its location with sufficient specificity. Claimant [sic] descriptions are instead vague and generalized” (Aronson Affirmation in Opposition to Cross-Motion, ¶ 4).

Court of Claims Act § 11(b) requires the Notice of Intention in this personal injury action to state “the time when and place where such claim arose [and] the nature of same.” The Notice of Intention (see Aronson Affirmation in Support of Motion to Dismiss, Exhibit A) states, at ¶ 3:

The time, place and the manner in which the claim arose: The incident occurred on the shoulder of the road of U.S. Route 9 in the City of Stockport, County of Columbia, State of New York at approximately 3:00 p.m. on the 18th day of April, 2006. The incident occurred on that stretch of the road that abuts the parking lot of the property known as the Columbiaville Post Office. The manner in which the injuries were sustained was as follows: Virginia Little was walking toward the entrance of the Columbiaville Post Office when she was caused to trip and fall in a pothole that had not been repaired. (See also id., Exhibit B, ¶ 3).


The Court is unable to discern how these allegations lack sufficient particularity. The statement of facts required by Section 11 (b) of the Court of Claims Act must be “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 short, substantial compliance with section 11 is what is required’ ” (Wharton v City Univ. of N.Y., 287 AD2d 559, 559-560 [2d Dept 2001], quoting Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998]). “Although a Notice of Intention to file a claim need not include all the facts necessary to state a cause of action, it must at least set forth the general nature of the claim so as to give some indication of the manner in which the claimant was injured and how [defendant] was negligent and enable defendant to ascertain the existence and extent of its liability” (Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003] [internal quotations omitted], quoting Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 [1998] and Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980]).

The Notice of Intention to file this claim informs defendant that a pothole existed on the shoulder of Route 9 abutting the parking lot of the Columbiaville Post Office. The statement of the location is particularized enough that it does not require defendant to “ferret out” facts about the location of the pothole (see Lepkowski v State of New York, 1 NY3d 201, 208 [2003]). Contrary to defendant’s contention, section 11 (b) does not require the Notice of Intention to “describe the alleged pothole condition” (Aronson Affirmation in Opposition to Cross-Motion, ¶ 4). Without further explanation of insufficiency by defendant, the Court must conclude that this is a sufficient statement of the location of the pothole such that it did not impair defendant’s ability to investigate the accident in any manner (compare Buskey v State of New York, UID # 2008-031-041, Claim No. 112828, Motion No. M-75078, Minarik, J. [Sept. 2, 2008] [description of location lacked sufficient particularity because it described “dozens of locations” on the premises]). Further, it is noted that defendant does not contend that any other form of prejudice will be suffered if the motion to treat the Notice of Intention as the claim is granted.

Finally, defendant’s arguments that granting claimant’s cross motion would allow claimant to “circumvent the strict jurisdictional requirements for bring [sic] suit in the Court of Claims” and “could open a pandora’s box to otherwise jurisdictionally barred claims” (Aronson Affirmation in Opposition to Cross-Motion, ¶ 5) is manifestly contrary to Court of Claims Act § 10(8)(a), which expressly permits the Notice of Intention to be treated as the claim when the claimant has failed to timely file or serve a claim, provided that the conditions set forth in that provision are met. Here, because all of the requirements of Court of Claims Act § 10(8)(a) have been satisfied, claimant’s motion will be granted. Accordingly, it is

ORDERED, that defendant’s Motion No. M-75469 is GRANTED, and Claim No. 115122 is DISMISSED as jurisdictionally defective, but it is further

ORDERED, that claimant’s Cross-Motion No. CM-75658 for permission to treat her Notice of Intention as a claim is GRANTED. Claimant is directed to file her served Notice of Intention along with the statutory filing fee with the Clerk of the Court within 30 days of the filed date of this Decision and Order, and to contemporaneously notify defendant in writing of such filing. The Clerk shall treat the Notice of Intention as a claim and assign a new claim number to it upon receipt of the appropriate filing fee, and it is further

ORDERED, that upon receipt of notice of the filing, defendant shall answer the claim in accordance with the provisions of the CPLR and 22 NYCRR § 206.7(a).

January 12, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim, filed April 15, 2008;

(2) Verified Answer, filed May 29, 2008;

(3) Notice of Motion to Dismiss, dated August 27, 2008;

(4) Affirmation of Saul Aronson, AAG, in Support of Motion to Dismiss, dated August 27, 2008,

with Exhibits A-C;

(5) Cross-Motion, dated October 7, 2008;

(6) Affirmation of L.A. Beesecker, Esq., dated October 7, 2008, with exhibits 1-3;

(7) Affirmation of Saul Aronson, AAG, in Opposition to Cross-Motion, dated October 14, 2008.