New York State Court of Claims

New York State Court of Claims

CLARK v. STATE OF NEW YORK, #2009-039-107, Claim No. 114813, Motion Nos. M-74722, CM-74870


Defendant’s preanswer motion to dismiss the claim pursuant to Court of Claims Act § 11 (b) is granted, and claimant’s cross motion for leave to amend the notice of intention to file a claim and the claim is denied. Neither the notice of intention nor the claim contained sufficient information to permit defendant to conduct a meaningful investigation. Moreover, the Court of Claims Act provides no method for amending a notice of intention, and leave to amend a claim shall not be permitted to cure a jurisdictional defect.

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):
M-74722, CM-74870
Cross-motion number(s):

James H. Ferreira
Claimant’s attorney:
Paul F. Dwyer, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michele M. WallsAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 16, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose on May 6, 2007 at approximately 2:00
on the campus of the State University of New York at Albany (SUNY-Albany). It is alleged that claimant suffered serious injuries, as defined by Insurance Law § 5102,[1] consisting of, among other things, a sprained and strained left ankle. The claim does not indicate how this injury came about but asserts that the “acts and omissions” of the State that support and “prove” the claim were as follows:

“by and through its’ [sic] employees, agents and/or representatives, negligently, carelessly and recklessly caused, allowed and permitted a dangerous and defective condition, which consisted of a broken, cracked, misshapen, uneven, buckled and deteriorating macadem [sic] sideway walkway, to exist.”

(Claim at ¶ 5).

Prior to filing the claim, claimant served on the Attorney General a notice of intention to file a claim (see Walls Affirmation, Exhibit “B”), which contained the same information as set forth above with the addition of two paragraphs addressing the issues of notice and causation, which read as follows:

“6. The condition described above was one of which the respondent, by and through its’ [sic] agents, employees or representatives, had actual and constructive notice for more than a reasonable period of time prior to the claimant’s fall, yet it failed to correct, alleviate or warn against said dangerous and defective condition.

7. As a direct and proximate cause of the foregoing, the claimant was caused to incur serious personal and permanent injuries when she was caused to lose her footing on the broken and defective pavement and fall to the ground. These actions and omissions constituted negligence, recklessness and carelessness and a breach of duty of care due and owing by the respondent to the claimant.”

In lieu of answering, defendant has moved for an order dismissing the claim on the ground that it fails to comply with the pleading requirements of section 11 (b) of the Court of Claims Act. That section requires, insofar as is relevant here, that both a claim and a notice of intention shall include, inter alia, “the time when and place where such claim arose [and] the nature of same.”

The State’s waiver of immunity from suit is contingent upon a claimant’s compliance with the pleading requirements of section 11 of the Court of Claims Act (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]), and the guiding principle in determining whether or not the allegations in a pleading are sufficiently definite is whether they “enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances’ ” (id. at 207, quoting Heisler v State of New York, 78 AD2d 767 [1980]). Insufficient detail regarding the location where an accident occurred, so that defendant cannot determine from the claim and/or notice of intention how to commence an investigation is a jurisdictional defect requiring dismissal of the claim (see Sheils v State of New York, 249 AD2d 459 [1998]; Schneider v State of New York, 234 AD2d 357 [1996]; Cobin v State of New York, 234 AD2d 498, 499 [1996], lv dismissed 90 NY2d 925 [1997], rearg denied 91 NY2d 849 [1997]).

In the instant case, if one combines all of the factual information contained in both the notice of intention and the claim, the most that one can determine is that at a specific time on a specific date, claimant fell to the ground because of broken pavement somewhere on the SUNY-Albany campus, a campus that encompasses several acres and has numerous sidewalks and roadways. There is simply not enough information contained in both documents to permit defendant to conduct a meaningful investigation, and the claim must therefore be dismissed.

The cases cited by claimant’s counsel in support of the proposition that the notice of intention and/or the claim provide sufficient information to satisfy the requirements of section 11 (b) do not, in fact, support such a conclusion. In Klos v State of New York, (19 AD3d 1173 [2005]), the “general location” that was found to be sufficient was in the weight room of a specific prison. Similarly, in Rhodes v State of New York, (245 AD2d 791 [1997]), the time of the incident and location within a prison was provided, and the incident itself - an altercation in which an inmate was stabbed - was one that would have been written up and perhaps investigated at the time. Records, therefore, could be found by referencing the claimant’s name and the date. Ferrugia v State of New York, (237 AD2d 858 [1997]), involved another prison case in which the claimant was a porter carrying out an assigned work task when he fell while carrying food trays up a flight of stairs. Since those details and the date of the incident were provided, an investigation could be carried out with relative ease. Similarly, in Sinski v State of New York, (265 AD2d 319 [1999]), Epps v State of NewYork, (199 AD2d 914 [1993]), and Hamilton v State of New York, (11 Misc 3d 650 [2005]), a combination of information about time and place that was provided in the claim or notice of intention and the nature of the cause of action being asserted provided enough information for defendant to reasonably conduct an investigation of the underlying facts.

In her cross-motion, claimant seeks leave to amend both the notice of intention and the claim to supply the necessary information regarding the location of claimant’s fall. A notice of intention is not a pleading, (see Sega v State of New York, 246 AD2d 753 [1998], lv denied 92 NY2d 805 [1998]), and the Court of Claims Act, which authorizes and defines a notice of intention, provides no method for amending such a document. While leave to amend a pleading, such as a claim, is to be freely given where there is no prejudice to the opposing party (CPLR 3025 [b]), leave to amend a claim shall not be permitted to cure a jurisdictional defect (Lepkowski v State of New York, supra). Claimant’s only remedy would be to make an application with the Court for permission to file a late claim pursuant to Court of Claims Act § 10 [6].

Accordingly, it is hereby ordered that M-74722 is granted and CM-74870 is denied, and the claim is dismissed.

January 16, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered
  1. Notice of Motion dated March 10, 2008;
  2. Affirmation in Support of Defendant’s Motion to Dismiss the Claim in Lieu of Answer by Michele M. Walls, AAG, dated March 10, 2008 with exhibits;
  3. Notice of Cross-Motion dated April 23, 2008; and
  4. Affidavit in Opposition of Notice of Motion and in Support of Cross-Motion by Paul F. Dwyer, Esq., sworn to on April 23, 2008 with exhibits.

[1]. Insurance Law § 5102 is part of the Comprehensive Motor Vehicle Insurance Reparations Act.