New York State Court of Claims

New York State Court of Claims

ILACQUA v. STATE OF NEW YORK, #2009-038-518, Claim No. 115927, Motion No. M-75813


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
TOWNE, BARTKOWSKI & DeFIO KEAN, P.C.By: Michael Rhodes-Devey
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Thomas R. Monjeau, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 23, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim seeks compensation for personal injuries sustained when claimant tripped and fell on a sidewalk. Defendant moves to dismiss the claim on the ground that the pleading does not sufficiently plead the location where the incident occurred and defendant’s alleged negligence.  Claimant opposes the motion. The claim states that the alleged incident occurred “on the sidewalk in front of the Alfred E. Smith Building on Swan Street in the City and County of Albany, State of New York” (Claim, ¶ 2). It further alleges that claimant “was walking upon the public sidewalk . . . when he tripped upon on [sic] a raised section of the sidewalk” (id. ¶ 4), and that “[t]he State was negligent in the design and construction of the sidewalk, in that the raised area of the sidewalk . . . was apparently designed into the sidewalk creating a dangerous condition” (id. ¶ 5).

Defendant contends that these allegations do not satisfy the pleading requirement of CPLR 3013, which states that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions [or] occurrences . . . intended to be proved and the material elements of each cause of action or defense.” Defendant states that “the claim do[es] not provide any information as to what the alleged negligence was or what duty the defendant breached” (Monjeau Affirmation, ¶ 6), but defendant does not articulate any facts that are omitted that would establish an element of a cause of action (compare Vanscoy v Namic USA Corp., 234 AD2d 680, 682 [3d Dept 1996] [age discrimination complaint against employer lacked factual allegation that employer knew or acquiesced in alleged discriminatory conduct by a supervisor]). The claim here alleges negligent design and construction of the sidewalk, which implicates: (1) “a duty ‘to exercise a reasonable degree of care in [the] plan or design so as to avoid any unreasonable risk of harm to anyone likely to be exposed to danger when the [sidewalk] is used in the manner for which [it] was intended’” (Caronna v Macy’s East, Inc., 6 Misc 3d 1016[A], *6 [Sup Ct NY County 2001] quoting Micallef v Miehle Co., 39 NY 2d 376, 385 [1976]; see also Hughes v City of New York, 5 Misc 3d 1024[A] [Sup Ct NY County 2002]); and (2) a duty to construct its sidewalk in a reasonably safe condition (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]. The allegations in the claim – that claimant was walking on a public sidewalk when he tripped on a raised section of it – are sufficiently particular to put defendant on notice of the claim for negligence.

Defendant further contends that the claim does not comply with the substantive pleading requirements of Court of Claims Act § 11 (b), which, in claims for personal injury, require that “[t]he 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.” It is well established that the failure to satisfy these substantive pleading requirements is a jurisdictional defect that requires dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]; Lepkowski v State of New York, 1 NY3d 201, 209 [2003]). The guiding principle underlying section 11 (b) is that the claim be stated with sufficient definiteness “to enable the State . . . to investigate the claim[s] promptly and to ascertain is liability under the circumstances” (id. at 207, quoting Heisler v State of NewYork, 78 AD2d 767, 767 [4th Dept 1980]). “The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State” (Heisler, supra at 767). When seeking an order dismissing the claim for insufficient pleading, “it is incumbent upon defendant to demonstrate that its ability to investigate was impaired by the alleged insufficiency of the claim” (Singh v State of New York, UID # 2006-036-553, Claim No. 109854, Motion No. CM-71727, Schweitzer, J. [Sept. 20, 2006]; see Cannon v State of New York, 163 Misc 2d 623, 627 [Ct Cl 1994]; Tamez v State of New York, UID # 2007-015-213, Claim No. 113184, Motion No. M-72858, Collins, J. [July 10, 2007]).

With respect to the pleading requirements set forth in Court of Claims Act § 11(b), defendant argues that “the claim does not provide any information to even describe how or where the raised area that claimant tripped on was located. A raised area in the middle of a sidewalk, for example, would obviously be different than a raised border along the edge of the sidewalk” (Monjeau Affirmation, ¶ 7). Defendant cites no authority for the proposition that the location of the alleged defect must be plead with such exacting specificity (compare Tamez, supra [place of incident was sufficiently stated when claim alleged that it occurred “in a trench at [a construction site] at Interstate 87, near Route 155, Albany, NY”]; Schlossman v State of New York, UID # 2006-036-525, Claim No. 111230, Motion Nos. M-71240, CM-71289, Schweitzer, J. [May 16, 2006] [claim alleged “that the accident occurred at the ‘steps and/or doorway entrance’ of the Park Avenue Armory . . . and that the steps and pavement in that location were ‘uneven, unmarked, improperly designated, (etc.)”]). Moreover, defendant does not argue or submit support demonstrating that its ability to investigate the alleged incident was impaired because the pleading was insufficient (see Wilson v State of New York, UID # 2007-031-043, Claim No. 111995, Motion No. M-73112, Minarik, J. [Sept. 11, 2007] [“ice which covered the roadway outside of the draft processing area” at correctional facility was sufficiently pleaded]; Partridge v State of New York et al., UID # 2001-013-001, Claim No. 90710, Motion No. M-62089, Patti, J. [March, 2001] [describing premises damaged by flood by mailing address]). Nor does defendant contend that the asserted lack of specificity misled, deceived or prejudiced defendant.

In sum, defendant has not demonstrated that the claim does not satisfy the pleading requirements of CPLR 3013 or that defendant’s ability to investigate the incident was impaired by a pleading that does not satisfy Court of Claims Act § 11(b). Accordingly, it is

ORDERED, that Motion No. M-75813 is DENIED.

February 23, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 115927, filed October 8, 2008;

(2) Notice of Motion to Dismiss, dated November 7, 2008;

(3) Affirmation of Thomas R. Monjeau, AAG, dated November 7, 2008;

(4) Affirmation in Opposition of Michael Rhodes-Devey, Esq. dated November 26, 2008, with Exhibit A;

(5) Correspondence of Melanie J. LaFond, Esq., dated December 5, 2008.