New York State Court of Claims

New York State Court of Claims
PEEPLES-POLK v. STATE OF NEW YORK, # 2010-034-527, Claim No. 112553, Motion No. M-78020, Cross-Motion No. CM-78146


The claim is jurisdictionally defective for failing to state with specificity the "place where" the incident occurred, as required under Court of Claims Act 11 (b). Claimant's description of a sidewalk "near the Alumni Arena of the University of Buffalo North Campus" is not specific enough, particularly when a defect in the premises is alleged.

Case information

UID: 2010-034-527
Claimant short name: PEEPLES-POLK
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) : I have amended the caption sua sponte to reflect the State of New York as the only proper party defendant. "The State University is an integral part of the government of the State and when it is sued the State is the real party" (State Univ. of N.Y. v Syracuse Univ., 285 App Div 59, 61 [1954]; see Colombo v Schwartz, 15 AD3d 522, 522-523 [2005] [affirming Supreme Court's dismissal of complaint against a State University hospital for lack of jurisdiction, since State was real party in interest]).
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112553
Motion number(s): M-78020
Cross-motion number(s): CM-78146
Claimant's attorney: ANDREWS, BERNSTEIN & MARANTO, LLP
Third-party defendant's attorney:
Signature date: June 29, 2010
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers have been considered on Defendant's motion for dismissal and/or summary judgment, and Claimant's cross motion for leave to file and serve an amended claim.

1. Claim, verified June 30, 2006, filed July 21, 2006;

2. Answer, verified August 22, 2006, filed August 23, 2006;

3. Notice of Motion, dated March 22, 2010, filed March 23, 2010;

4. Attorney Affirmation of Elizabeth A. Talia, dated March 22, 2010, with attached exhibits;(2)

5. "Expert Affidavit" of Philip F. Frandina, sworn to March 19, 2010, filed March 23, 2010, with attached exhibits;

6. "Memorandum of Law in Support of Respondents' Motion to Dismiss Pursuant to CPLR 3211 (a) (2) and Motion for Summary Judgment Pursuant to CPLR 3212," dated March 22, 2010;

7 Notice of Cross-Motion, dated April 14, 2010, filed April 14, 2010;

8. Affirmation of Andrew J. Connelly, dated April 14, 2010, with attached exhibits;

9. Affidavit of Scott Covill, sworn to April 14, 2010;

10. Reply Attorney Affirmation of Elizabeth A. Talia, dated April 20, 2010, filed April 20, 2010;

11. "Reply Expert Affidavit" of Philip F. Frandina, sworn to April 17, 2010, filed April 20, 2010;

12. Page 76 of the deposition of Claimant of April 22, 2008, filed April 20, 2010; 13. Reply Memorandum of Law, dated April 20, 2010.

Claimant seeks to recover for injuries she reportedly sustained in a fall on a sidewalk at the north campus of the State University of New York at Buffalo. Ms. Peeples-Polk has alleged that her accident occurred on May 20, 2006, at approximately 1:45 in the afternoon, after she had exited her daughter's graduation ceremony at Alumni Arena, and was walking toward a parking lot or automobile. It is undisputed that weather conditions that afternoon were sunny, and that nothing impaired Claimant's ability to see as she walked. It is also undisputed that Claimant was wearing high-heel shoes at that time.(3) According to Ms. Peeples-Polk, as she walked along an area of sidewalk "the heel of her left shoe became trapped in the space between the cement slabs in the sidewalk, causing her to fall and sustain serious personal injuries" (claim, 9). She contends that Defendant created a dangerous condition by allowing unfilled or improperly filled spaces to remain, and/or was negligent in its maintenance of the property, and/or its hiring of contractors or other agents.

Claimant filed and served her claim on or about July 21, 2006.(4) In her pleading she described the accident as having occurred while "walking near the Alumni Arena on the University at Buffalo North Campus, in the Town of Amherst" (claim, 9). She provided no further amplification of the location of the incident within her claim. In its answer, Defendant raised six affirmative defenses, including an allegation that "[t]he claim fails to include an adequate description of the location of the incident or condition, as the case may be, alleged in the claim as required by  11 of the Court of Claims Act, and therefore, there is no proper claim over which the Court has jurisdiction" (answer, tenth). Defendant has now moved to dismiss the claim by reason of that alleged jurisdictional pleading deficiency, or alternatively for summary judgment dismissing the claim on the merits. Claimant has opposed the motion, and cross-moves to amend the claim. For reasons that follow I must now grant the State's motion and dismiss the claim for lack of subject matter jurisdiction. I will decline to address Defendant's further motion for summary judgment, as moot. Claimant's cross motion will be denied.

Court of Claims Act 11 (b) sets certain specific pleading requirements as substantive conditions upon the State's waiver of sovereign immunity, with noncompliance rendering a claim jurisdictionally defective (Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]; see Kolnacki v State of New York, 8 NY3d 277 [2007], rearg denied 8 NY3d 994 [2007] [addressing jurisdictional nature of requirement to plead a total sum claimed]).(5) One such pleading provision, as set forth within section 11 (b) is the "place where such claim arose." The failure to adequately set forth the location of an incident is a jurisdictional defect that necessitates dismissal of the claim (see e.g. Triani v State of New York, 44 AD3d 1032 [2007] [reversing Court of Claims' determination that description of accident site as the sidewalk abutting Kingsboro Hospital, at 681 Clarkson Avenue in Brooklyn, sufficiently described the place where a slip and fall occurred]).(6) Similarly, the failure to adequately state the situs of an incident within a notice of intention to file a claim renders that document jurisdictionally defective (see Wilson v State of New York, 61 AD3d 1367 [2009]).

In weighing the sufficiency of an allegation of the location of an incident I am mindful of several factors. First, "[w]hat is required is not absolute exactness, but simply a statement 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 [now section 11 (a) and (b)] is what is required" (Heisler v State of New York, 78 AD2d 767, 767 [1980]). Indeed, it is the need for definiteness sufficient to enable the State to promptly investigate a claim and to ascertain its liability "which is the guiding principle informing section 11 (b)" (Lepkowski, 1 NY3d at 207). Moreover, "a lack of prejudice to the State is an immaterial factor" in assessing compliance with such jurisdictional requirements (Byrne v State of New York, 104 AD2d 782, 784 [1984] [addressing jurisdictional filing requirements]; see Wilson, 61 AD3d at 1368 [addressing jurisdictional pleading requirements]). Further, the State is not required to go beyond the claim or notice of intention in order to investigate an occurrence, or ferret out information which should be provided under section 11 (b) (Lepkowski, 1 NY3d at 208; Cobin v State of New York, 234 AD2d 498, 499 [1996], lv dismissed 90 NY2d 925 [1997]). The gravamen of the claim is also relevant, in that specificity regarding the location of an incident can be of greater significance when a claim is based upon an alleged defect in a premises - particularly an outdoor setting - than when the cause of action is not dependent upon a dangerous condition (compare e.g. Deep v State of New York, 56 AD3d 1260 [2008] [lack of detail regarding exact location on a specified roadway where multi-vehicle accident occurred not jurisdictionally defective, where nature of claim involved State's operation of vehicle, and defendant could promptly investigate and assess potential liability]; Sheils v State of New York, 249 AD2d 459 [1998] [lack of detail within notice of intention and claim regarding exact location along 1000 foot length of specified roadway where claimant fell jurisdictionally defective, where nature of claim involved fall by pedestrian along roadway]; see also Schneider v State of New York, 234 AD2d 357 [1996] [notice of intention and claim alleging trip and fall "in the picnic area adjacent to the parking area" at a State park with multiple picnic and parking areas jurisdictionally defective]; Cobin, 234 AD2d at 499 [allegation within notice of intention that claimant tripped and fell "on the boardwalk at Jones Beach, County of Nassau, State of New York, in the East Quarter Circle, or its vicinity" jurisdictionally defective]).

In this instance, where the claim of liability is similarly premised upon a defective or dangerous condition that resulted in a trip and fall, the perfunctory references to a "sidewalk," and "near the Alumni Arena on the University at Buffalo North Campus, in the Town of Amherst," must be deemed deficient. The various photographs and map in evidence reflect multiple walkways or sidewalks immediately surrounding Alumni Arena, and in its broader environs (see attorney affirmation of Elizabeth A. Talia, dated March 22, 2010 [Talia affirmation], exhibits E [map], I [overhead photograph of Alumni Arena, with markings]). For that reason alone the vague reference to the location of Claimant's fall precludes any ability to focus on any particular area of sidewalk in assessing whether a dangerous or defective condition existed. Moreover, and notwithstanding Ms. Peeples-Polk's assertion that University personnel observed her on the ground following her fall, it is undisputed that no representative of Defendant was summoned to assist her at that time, and that Claimant left the scene in her former husband's automobile, and not by ambulance. The first notice or report to the University was made by Claimant herself, on June 5, 2006 (see affirmation of Andrew J. Connelly, dated April 14, 2010 [Connelly affirmation], exhibit B [Incident Report]). Mindful that Claimant has disputed certain aspects of the manner by which her shoe caused her to fall, she has not disputed that she initially reported that her accident occurred "upon exiting the arena in the area of the East doorways." However, in the course of her deposition she marked the location of her fall at a section of sidewalk along the south side of the building (see Talia affirmation, exhibit I). Clearly, the location Ms. Peeples-Polk depicted was not in the area of the facility's east doorways, or even in the area of its south doorways, which she marked during her deposition as her actual point of exit (id.).

Several authorities cited by Claimant in opposition to dismissal for lack of subject matter jurisdiction warrant comment. I note that Peart v State of New York, 10 Misc 3d 1070 (A) (2005) and Hamilton v State of New York, 11 Misc 3d 650 (2005), focused on whether the pleading requirements of section 11 (b) would extend to the need to recite a total sum claimed, as I had decided in Kolnacki v State of New York, 10 Misc 3d 781 (2005), and more generally whether Lepkowski should be interpreted as compelling that each of the pleading matters listed within section 11 (b) had to be addressed as a jurisdictional prerequisite. The determinations reached in Peart and Hamilton were effectively rejected by the Court of Appeals in Kolnacki (see 8 NY3d 277).

To the extent that Claimant further urges that, under Hamilton (see 11 Misc 3d at 665, n 14, and citations therein), the State must demonstrate some effort to investigate based upon the claim before it can assert a pleading insufficiency, I simply note that the deposition excerpts from William Marshall, an employee of the University, reflect his examination of the east entranceway of Alumni Arena at some point between January and April 2007, in an unsuccessful attempt to find where a person might have fallen after their heel became stuck in a sidewalk defect (see Talia affirmation, exhibit M [transcript excerpts], pp 12-15).

Similarly, Claimant's reliance upon Gonzalez v State of New York, 25 Misc 3d 1216 (A) (2006) is misplaced. Assuming that a jurisdictionally sufficient notice of intention can overcome substantive deficiencies in a later claim, in this instance Ms. Peeples-Polk did not elect to serve a notice of intention before commencing suit. To the extent that Gonzalez further notes the significance of a contemporaneous incident report in the later conduct of an investigation, here Claimant's report of the incident occurred two weeks after she fell, and provided a vague and inaccurate description of the site of her accident. For that reason, her report hardly facilitated Mr. Marshall's efforts - albeit almost one year later - to locate the scene of her fall. On that same basis I find Lufker v State of New York, 239 AD2d 565 (1997), to be distinguishable.

Lastly, Klos v State of New York, 19 AD3d 1173 (2005) focused on the sufficiency of allegations regarding the nature of a claim, as reflected within a notice of intention, a different substantive matter reviewed under a different standard where a cause of action had not been stated (see Epps v State of New York, 199 AD2d 914 [1993]).(7)

In light of the foregoing, I will not consider the State's further motion for summary judgment.

I will deny the cross motion to amend. A jurisdictional deficiency cannot be cured through amendment (see Hogan v State of New York, 59 AD3d 754, 755 [2009]; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985 [1986]; Grande v State of New York, 160 Misc 2d 383, 387 [1994]).

Based upon the foregoing, it is hereby

ORDERED, that the claim is dismissed for lack of subject matter jurisdiction, based upon the failure to adequately plead the place where the claim arose; and it is further

ORDERED, that Claimant's cross motion for leave to amend the claim is denied.

June 29, 2010

Buffalo, New York


Judge of the Court of Claims

2. I will decline counsel's invitation to conduct my own internet reviews of the size and layout of the University at Buffalo's North Campus, or the size and uses made for Alumni Arena. Such research extends beyond a readily reviewable record, and deprives both parties the opportunity to address factual matters that I might deem relevant (see Matter of Justice v King, 60 AD3d 1452, 1453-1454 [2009], appeal dismissed 12 NY3d 908 [2009], cert denied 130 S Ct 496 [2009]; Rado v Rado, 298 AD2d 887, 888 [2002]). I will also decline to rely upon factual allegations within the attorney's affirmation - such as the size of Alumni Arena - that are not established on knowledge, or otherwise derived from an evidentiary submission (see Zuckerman v City of New York, 49 NY2d 557, 563-564 [1980]).

3. Claimant described her shoes as having 3-inch heels, and a "sling-back" strap across the back (see attorney affirmation of Elizabeth A. Talia, dated March 22, 2010, exhibit F [deposition of Claimant], pp 32-35). Defendant, in turn, has tendered evidence that the heels were 4 inches high (id. at exhibit H [photograph]). To the extent that the defense has described the shoes as having "stiletto" heels, I simply accept that the heels are quite narrow.

4. I note that Claimant elected - as was her right - not to serve a notice of intention to file a claim before she commenced suit.

5. Section 11 (b) was amended effective August 15, 2007 (L 2007, ch 606 1) to abrogate the requirement to plead a total sum claimed in certain tort claims.

6. See Triani v State of New York, Ct Cl, August 30, 2006, Marin, J., UID No. 2006-016-055, claim No. 112028, motion No. M-71583. Unpublished decision and orders are available on the Court of Claims website at

7. See Klos v State of New York, Ct Cl, February 27, 2004, Patti, J., UID No. 2004-013-015, claim No. 105011, motion No. M-67566.