New York State Court of Claims

New York State Court of Claims
MOSQUERA v. THE STATE OF NEW YORK, # 2018-032-008, Claim No. 129478, Motion No. M-90345, Cross-Motion No. CM-91088

Synopsis

Defendant's motion to dismiss the claim as jurisdictionally defective for failing to comply with Court of Claims Act 11 (b) is granted. Claimant's cross-motion to amend is denied.

Case information

UID: 2018-032-008
Claimant(s): MORLAIX MOSQUERA
Claimant short name: MOSQUERA
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) : The caption has been amended to reflect the only properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129478
Motion number(s): M-90345
Cross-motion number(s): CM-91088
Judge: JUDITH A. HARD
Claimant's attorney: Pavlounis & Sfouggatakis, LLP
By: Richard Javier Freire, Esq
Defendant's attorney: Hon. Eric T. Schneiderman, NYS Attorney General
By: Keith Nezowitz, and Indira Mahabir, Assistant Attorneys General,
Of Counsel
Third-party defendant's attorney:
Signature date: January 10, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

On March 27, 2017, claimant served upon defendant a Notice of Intention to File a Claim. On or about March 30, 2017, claimant filed a Verified Claim that is in all respects identical to the Notice of Intention to File a Claim. The Verified Claim alleges that claimant sustained injuries when she tripped and fell on a sidewalk in front of the entrance of York College. Defendant now moves to dismiss the claim on the ground that the claim is jurisdictionally defective for lack of compliance with the pleading requirements of Court of Claims Act 11. Claimant cross-moves to amend the claim. For the reasons that follow, the Court grants defendant's motion and dismisses the claim.

Motion to Dismiss

"The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]; see Court of Claims Act 8; Alston v State of New York, 97 NY2d 159, 163 [2001]). Moreover, "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Matter of New York City Asbestos Litig., 24 NY3d 275, 281 [2014] [internal quotation marks and citations omitted]). As relevant here, Court of Claims Act 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" (Lepkowski v State of New York, 1 NY3d at 206 [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept. 2016] [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept. 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept. 2008]). It is well settled that defendant should not be required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d at 208).

Here, defendant argues that the claim is defective because it fails to (1) list the items of damage or injuries sustained; (2) state an adequate description of the location of the incident alleged; and (3) state the acts or omissions giving rise to the claim. The Court agrees with defendant's three arguments.

As to the first argument, Court of Claims Act 11 (b) provides that a notice of intention to file a claim shall set forth the same matters required in the claim itself, except that "the items of damage or injuries and the sum claimed need not be stated." The relaxed pleading requirement for a notice of intention to file a claim compels the conclusion that a specific injury must be alleged in the claim (Rossello v State of New York, UID No. 2017-050-005 [Ct Cl, Lynch, J., Feb. 24, 2017]). Here, the claim alleges that claimant sustained "physical and emotional pain and suffering" (Verified Claim, 6). This language is insufficient to meet the pleading requirements of Court of Claims Act 11 (b) (see Rossello v State of New York, UID No. 2017-050-005 [Ct Cl, Lynch, J., Feb. 24, 2017] [finding that claimant's alleged injuries of "[p]ersonal injuries, pain and suffering and medical expenses. . . $10,000,000.00" were not sufficiently specific under Court of Claims Act 11 (b)]; Caggiano v State of New York, UID No. 2007-041-024 [Ct Cl, Milano, J., June 5, 2007] [finding that claimant's alleged injuries of "severe, serious and permanent debilitating injuries, mental anguish, pain and suffering, loss of enjoyment of life, economic and pecuniary loss, and other damages" were not sufficiently specific under Court of Claims Act 11 (b)]).

Defendant's second argument alleges that the claim fails to include an adequate description of the location of the incident. "An accident in a public area cannot be investigated without a specific location. Even when a location is specified, the condition must be described so an investigator has an indication of what to look for" Cannon v State of New York, 163 Misc2d 623, 627 [Ct Cl 1994]). Furthermore, "[a]n open, public area requires greater specificity because the defendant has no ability to ascertain what occurred by simply going to a designated place" (id.). Here, claimant alleges that the accident occurred "on the sidewalk in front of the entrance of York College, located on 160th Street between Archer Avenue and Liberty Avenue", (Verified Claim, 2), but the incident report attached to the claim states that the accident happened in the lobby of the Classroom Building. Additionally, a York College map submitted by defendant shows that there are multiple buildings on 160th Street between Archer Avenue and Liberty Avenue, along with sidewalks on both sides of the street and presumably directly in front of each building (Nezowitz Aff., Exhibit B). Although claimant submitted a picture of an allegedly defective section of sidewalk, claimant failed to provide any details of where the picture was taken or what defects are depicted in the pictures. Further, the claim fails to specify the alleged defect in the sidewalk that would allow defendant to seek out and investigate the relevant location. Thus, the Court finds that the location provided by claimant does not adequately apprise defendant of the location of the incident (Triani v State of New York, 44 AD3d 1032, 1032 [2d Dept 2007] [finding a claim jurisdictionally defective where it failed to state identify the section of the sidewalk where the accident took place]).

Lastly, defendant argues that claimant's generic allegations of "negligence, carelessness and recklessness" and that defendant breached a duty to secure and maintain the premises" are too conclusory to meet the requirements of Court of Claims Act 11 (b) (see Verified Claim, 3, 6). The Court agrees. "[C]onclusory and general allegations of defendant's negligent creation of a dangerous condition [are] inadequate" (Sanders v State of New York, UID No. 2017-038-504 [Ct Cl, DeBow, J., Jan. 12, 2017]). Here, claimant's conclusory allegation of negligence, without more, is insufficient under the requirements of Court of Claims Act 11 (b) (Wharton v City Univ. of New York, 287 AD2d 559, 559 [2d Dept. 2001]; Grumet v State of New York, 256 AD2d 441, 442 [2d Dept. 1998] [citations omitted]).

Motion to Amend

Claimant seeks to amend the claim to cure the deficiencies identified by defendant. However, it is well-settled that a jurisdictionally defective claim cannot be amended (see Hogan v State of New York, 59 AD3d 754 [3d Dept. 2009]; Barnett v City Univ. of New York, UID No. 2017-053-539 [Ct Cl, Sampson, J., July 18, 2017]). As the requirements in Court of Claims Act 11 (b) are substantive conditions upon the State's waiver of sovereign immunity, the failure to satisfy any of the requirements constitutes a jurisdictional defect (Kolnacki v State of New York, 8 NY3d 277 [2007]).

Here, claimant argues that the notice of intention served on March 27, 2017 was sufficient to obtain jurisdiction over defendant. In support of this contention, claimant cites Cannon v State of New York, 163 Misc2d 623 [Ct Cl, 1994], which held that "a notice of intention which satisfies the purpose of the statute will be sufficient to obtain jurisdiction over the State." However, claimant's notice of intention does not satisfy the purpose of the statute. The notice of intention failed to describe the place where the claim arose, and the nature of the claim such that defendant could conduct a "meaningful investigation" (Cannon v State of New York, 163 Misc2d at 626). The Cannon decision held that a notice of intention is sufficient to obtain jurisdiction over the State only where the notice of intention enables the State to sufficiently investigate the claim. Here, the notice of intention does not properly state the location or nature of the claim in a way that would allow the State to adequately investigate (see Triani v State of New York, 44 AD3d at 1032; see also Sega v State of New York, 246 AD2d 753, 755 [3d Dept. 1998], lv denied 92 NY2d 805 [1998] [finding the notice of intention insufficient where it failed to specify the specific location or details about the general nature of the claim]). Thus, the notice of intention is not sufficient to obtain jurisdiction over the State.

Accordingly, claimant's motion to dismiss the claim for failure to comply with the requirements of Court of Claims Act 11 (b) (Motion No. M-90345) is granted and the claim (No. 129478) is dismissed as jurisdictionally defective. Claimant's motion to amend the claim (Motion No. CM-91088) is denied. Claimant's recourse is to file a motion for permission to file a late claim pursuant to Court of Claims Act 10 (6).

January 10, 2018

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion, dated May 5, 2017; and Affirmation in Support, sworn to by Keith Nezowitz, AAG on May 5, 2017, with Exhibits A-B annexed thereto.

2. Notice of Cross-Motion, dated September 25, 2017; and Affirmation in Support of Cross-Motion and in Opposition to Respondent's Motion, sworn to by Richard Javier Freire on September 25, 2017, with Exhibits A-D annexed thereto.

3. Reply Affirmation in Further Support of Motion to Dismiss and in Opposition to Claimant's Cross-Motion to Amend Claim, sworn to be Indira Mahabir, AAG on October 17, 2017