|Claimant short name:||BOSCO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||STEPHEN J. LYNCH|
|Claimant's attorney:||Subin Associates, LLP
By: Lee M. Huttner, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Antonella Papaleo, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 11, 2019|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim herein pursuant to CPLR 3211 (a ) (7) and Court of Claims Act (CCA) § 11 (b). Claimant opposes the motion.
The claim filed May 30, 2019 alleges that claimant was injured when she tripped and fell while walking on a "service road, curb and grassy area" on "the Long Island Expressway service road, at/or near Exit 58."
Defendant argues that claimant cannot establish that defendant owed her a duty of care because the state does not own or control the roadway in question and thus, the claim fails to state a cause of action. Defendant also argues that claimant fails to adequately describe the location of the incident in both the claim and the notice of intention to file a claim as required by CCA § 11 (b).
In assessing defendant's motion to dismiss under CPLR (a) (7), the Court must accept claimant's allegations as true, accord her the benefit of every possible favorable inference, and determine only whether she has a cause of action (see Connolly v Long Is. Power Auth., 30 NY3d 719 ). Here, defendant incorrectly concludes that the affidavit of Elizabeth Chamakkala submitted in support of its motion demonstrates that the claim should be dismissed for failing to state a cause of action. The Chamakkala affidavit states that "the Long Island Expressway north service road (including the curb and grassy area beyond the curb), near or at Exit 58 . . . is not within the maintenance jurisdiction of the State of New York." Although the affidavit demonstrates that defendant does not maintain the incident area, it does not establish that the defendant does not own the road, curb or grassy area where claimant allegedly fell. "A motion to dismiss on the ground that the action is barred by documentary evidence . . . may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Qureshi v Vital Transportation, Inc., 173 AD3d 1076 [2d Dept 2019]). The Chamakkala affidavit fails to conclusively establish a defense and thus, this argument for dismissal is unpersuasive.
Defendant also argues that the claim must be dismissed for failure to comply with the pleading requirements of CCA § 11 (b). Court of Claims Act § 11 (b) requires, in pertinent part, 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." These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against the State (see Kolnacki v State of New York, 8 NY3d 277 ). "The Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201 ). Here, the claim inadequately states the location of the incident (even when it is read in conjunction with the notice of intention to file a claim and its exhibits) and further, fails to state with any specificity what claimant's injuries are. As a result, the claim is jurisdictionally defective and the Court is constrained to dismiss the claim (see Hargrove v State of New York, 138 AD3d 777 [2d Dept 2016]; Fairchild Corp. v State of New York, 117 AD3d 780 [2d Dept 2014]).
Therefore, for the foregoing reasons, defendant's motion to dismiss the claim is granted.
December 11, 2019
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims
The following papers were read and considered by the Court on defendant's motion to dismiss:
1. Notice of Motion, Affirmation in Support with Exhibits.
2. Affirmation in Opposition.
3. Affirmation in Further Support.