Claimant's motion to strike jurisdictional defenses alleging that the court lacks jurisdiction because the claim fails to comply with Court of Claims Act section 11(b) was granted. Defendant failed to show that defendant tried to investigate based on the information provided by claimant but was unable to do so because the information was not sufficient. Since whether a claimant has provided sufficient information for defendant to investigate is the guiding principle informing section 11(b) analysis, motion was granted and jurisdictional defenses stricken.
|Claimant short name:||GUZMAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The court has removed the unnecessary reference to the Department of Correctional Services from the caption.|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||JOHN CORCOS LEVY, ESQ.|
|Defendant's attorney:||ANDREW M. CUOMO, ATTORNEY GENERAL
By: Dian Kerr McCullough, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 4, 2010|
|See also (multicaptioned case)|
Claimant moves for an order striking the second, third, fourth, fifth and sixth affirmative defenses from defendant's answer. Defendant opposes the motion in part.
The incident underlying the claim occurred on September 14, 2007 when claimant, an inmate at Bedford Hills Correctional Facility, was allegedly injured while closing a window. Claimant, at the time acting pro se, served a notice of intention to file a claim on November 29, 2007 by certified mail, return receipt requested, alleging that on
"September 14, 2007 at approximately 12 p.m. the complainant was injured because of indecent prison conditions. The incident occurred inside the messhall where she works. At the time, while she was closing the window in dining room #1, the window shattered cutting her right wrist. C.O. Rosato immediately sent her to the clinic where Dr. Griffith put 8 stitches in her injury and sent her to the unit with Motrin."
In August 2009, claimant, now represented by counsel, served and filed the instant claim which basically repeated the factual allegations set forth in the notice of intention and added some legal language about defendant failing to inspect and maintain the window, failing to post warning of the hazardous condition and some additional detail about claimant's injuries.
In its answer dated September 9, 2009, defendant included eight separate affirmative defenses, five of which are at issue on this motion. Four of the defenses allege that the court lacks jurisdiction over the claim because of claimant's failure to comply with the substantive pleading requirements of Court of Claims Act section 11(b), specifically that claimant failed to adequately set forth "the condition alleged in the claim as a cause of the incident" and "the manner in which the incident occurred," failed to adequately identify the place where the claim accrued and failed to include a statement of the damages sought. The fifth affirmative defense alleges the "claim is covered by Article 16 of the Civil Practice Law and Rules and Section 15-108 of the General Obligations Law."
Responding to the motion, defendant has withdrawn its jurisdictional objections to the extent they were based on the failure to include a statement of damages (recognizing the amendment of section 11[b] to remove that requirement) and on the contention that claimant did not adequately identify the place where the claim accrued. CPLR Article 16 and Gen. Ob. Law section 15-108 are manifestly inapplicable to this case since there are no other potentially liable persons and no possibility of joint liability or offset - the subjects of those statutes. What remains is defendant's contention that the claim and notice of intention did not set forth the "condition alleged" or the "manner in which the incident occurred" (or, in the language of section 11[b], the "nature of" the claim) with the degree of specificity required by statute.
Claimant's burden on this motion is to demonstrate "that those defenses [are] without merit as a matter of law" (Vita v New York Waste Services, LLC, 34 AD3d 559). Defendant's position is that the subject affirmative defenses possess "merit as valid assertions and should not be dismissed" (Affirmation in Opposition, par. 8) and that "[c]laimant omitted crucial details about the 'nature' of the accident itself" depriving, as asserted in the answer, this court of subject matter jurisdiction over the claim. Notwithstanding this position, rather than make a motion to dismiss, defendant has elected instead to prepare the claim for trial and engage in proceedings such as exchange of bills of particulars and document disclosure and depositions and has elected to litigate this motion by explaining why it maintains that the court lacks jurisdiction but still not cross-moving to dismiss.
Both parties rely on the decision in Lepkowski v State of New York (1 NY3d 201 ), in support of their respective positions. In that decision, the Court of Appeals reaffirmed that Court of Claims Act section 11(b):
"places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) 'the nature of [the claim]'; (2) 'the time when' it arose; (3) the 'place where' it arose; (4) 'the items of damage or injuries claimed to have been sustained'; and (5) 'the total sum claimed' " (id. 207).
With respect to the "time when" requirement, the Lepkowski court found that the claimants' allegations in that case were:
"insufficiently definite 'to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances,' which is the guiding principle informing section 11 (b)"
(id. 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980], emphasis supplied).
Applying this guiding principle, courts have routinely held that although the State is not required to go beyond a notice of intention or a claim in order to ascertain the information required by statute (i.e. the information allowing the State to conduct a prompt investigation),
"the substantive information in a claim or notice of intention does not have to provide all of the information the State may need in order to assess its potential liability. Rather, there must be enough specific details about the time, location, and nature of the claim to enable the State to easily conduct an investigation and, through such investigation, assess its risk of being found liable."
(Gonzalez v State of New York, Sise, P.J., 25 Misc 3d 1216[A]).
Claimant argues that the information contained in claimant's notice of intention was sufficient to enable a prompt investigation and that the affirmative defenses are therefore all specious. Defendant's position, as noted, is that the "crucial details" allegedly omitted by claimant "prevented Defendant from conducting a proper investigation into Claimant's claim" and that the court lacks jurisdiction and should therefore deny the motion (Affirmation in Opposition, par. 14). Defendant identifies the missing crucial information as "how exactly the window in messhall #1 shattered . . . where she placed her hand to push the window closed . . . the amount of force she used when closing the window or whether she encountered any resistance . . . or whether she was directed to close the window" (id. par. 17). As a result of these omissions, defendant allegedly "could not have properly conducted an investigation into Claimant's accident" (id.).
Claimant submits that defendant's opposition to this motion is insufficient, maintaining that defendant has not shown how the information provided with respect to the nature of the claim in claimant's pro se notice of intention (2) was insufficient and has not shown that it attempted to investigate claimant's allegations based on the information provided but was unable to do so. In making this argument, claimant relies heavily on the decision in Kerr v State of New York (Ct Cl, Read, P.J., Claim No. 105574, Motion No. M-65237, filed Oct. 2, 2002):
"While 'the State "is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11" ' . . . defendant must make some effort to investigate based upon the information in the pleadings. Notably, defendant does not here contend that any attempted investigation was thwarted by an inability to identify the accident site, which defendant surely could have located with the photographs [attached to the claim] in hand."
(id. p 5, internal citations omitted).
Kerr was neither the first (3) nor the last (4) decision to recognize that section 11(b) analysis is not based on judges' and attorneys' suppositions as to whether the information provided in a particular notice of intention or claim would hypothetically be sufficient to allow for a prompt investigation. Rather, the analysis is aimed at ascertaining whether defendant actually attempted to investigate claimant's allegations but could not because claimant did not provide enough information. It is of particular note that Kerr was decided by the same judge (at the time the presiding judge of this court) who authored the Lepkowski decision at the Court of Appeals. And indeed, in referencing the Heisler decision and characterizing its holding as reflecting the "guiding principle" underlying section 11(b) analysis, Lepkowski is simply another articulation of the Kerr holding: that whether defendant was able to conduct a prompt investigation is a historical inquiry, not a hypothetical one. Here, defendant's argument is entirely hypothetical, based solely on the affirmation of counsel (alleging defendant "could not have properly conducted an investigation") with no affidavit from someone with knowledge referencing the actual investigation of the underlying incident that the papers before the court demonstrate occurred. Claimant is correct in asserting that defendant's approach reflects a fundamental misunderstanding of what Lepkowski requires.
Instead of demonstrating how it was unable to investigate due to insufficient information, defendant raises questions that, while the legitimate concern of a bill of particulars, depositions and other disclosure devices, have nothing at all to do with providing defendant with sufficient information in order to investigate and come to its own conclusions about potential liability. The questions raised by defendant have no jurisdictional import. Combined with the conceded sufficient identification of the time when and the place where the claim accrued, the allegation that claimant was injured while attempting to open the window, which shattered, and the reasonable inference that such was the result of defendant's negligent maintenance of the window - claimant used the words "indecent prison conditions" instead of "negligent maintenance" - the allegations of the notice of intention provided more than adequate notice of the nature of claimant's claim (Heisler v State of New York, 78 AD2d 767). Moreover, to require the elaboration suggested by defendant as a jurisdictional prerequisite - as opposed to as a matter of appropriate clarification through the disclosure process - would run afoul of the warning sounded by the Legislature against requiring "litigants to speculate in order to satisfy any of [the] requirements [of section 11(b)]" (Assembly Memorandum in Support of L. 2007 Ch. 606, removing the requirement that personal injury claims contain a total sum claimed).
The court finds that claimant satisfied the substantive pleading requirements of section 11(b) and has properly invoked the subject matter jurisdiction of this court. Claimant has demonstrated that the subject affirmative defenses have no merit and they are stricken.
October 4, 2010
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Notice of Motion, Affidavit with Exhibits
Affirmation in Opposition with Exhibits
Reply Affirmation with Exhibits
Claimant's Memorandum of Law
2. Claimant correctly notes that what is at issue herein is the adequacy of the notice of intention, served on defendant two months after the incident, and not the allegations of the claim, served almost two years later. All of the case law, including Lepkowski and Heisler, refer to affording the opportunity for a prompt investigation, to which the notice of intention was crucial but the claim was irrelevant (Gonzalez v State of New York (Sise, P.J.) 25 Misc 3d 1216[A]]; Stacy v State of New York (Minarik, J.) UID No. 2007-031-040 [Aug. 30, 2007]; Duverger v State of New York (Schweitzer, J.) UID No. 2006-036-511 [Mar. 23, 2006]; Peralta v State of New York (Scuccimarra, J.) UID No. 2004-030-902 [Feb. 10, 2004]). In any event, had the claim herein been the document served within the 90-day statutory period, the court's analysis and conclusions would be no different.
3. E.g. Cannon v State of New York (Silverman, J. 163 Misc 2d 623, 627 ): "Defendant is obligated to investigate, or attempt to investigate, the accident before it claims it cannot conduct an investigation."
4. E.g. Joseph v State of New York (Mignano, J.) UID No. 2007-029-038 [Oct. 1, 2007]; Smith v State of New York (Midey, J.) UID No. 2006-009-079 [December 22, 2006]; Dean v State of New York (Schweitzer, J.) UID No. 2006-036-555 [Sept. 20, 2006]; Partridge v State of New York (Patti, J.) UID No. 2001-013-001 [March 2001]; Turpin v State of New York (Read, P.J.) Claim No. 92485, Motion No. M-58816.