The Court denied Defendant's motion to dismiss the Claim pursuant to Court of Claims Act § 11 (b).
|Claimant short name:||ROBINSON|
|Footnote (claimant name) :||Caption amended to reflect Claimant's name only.|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Upon consent of the parties, the caption is amended to reflect that the State of New York is the only proper Defendant.|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||William Mattar, P.C.
By: Edward Allen Gibson, Esq.
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Bonnie Gail Levy, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 27, 2019|
|See also (multicaptioned case)|
Defendant moves pursuant to CPLR 3211 (a) (2) and (a) (8) to dismiss the Claim upon the ground that this Court lacks personal jurisdiction over it and subject matter jurisdiction over the Claim. Specifically, Defendant contends that Claimant's Notice of Intention to File a Claim fails to satisfy the particularity requirements of Court of Claims Act § 11 (b) and thus did not extend Claimant's time to serve and file her Claim. Claimant opposes the motion.
On March 22, 2019 Claimant Linda Robinson personally served a Notice of Intention to File a Claim upon the New York State Attorney General's Office (see Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, in Support, ¶ 3 & Ex A [Notice of Intention]). The Notice of Intention alleges that Claimant sustained injuries "on March 6, 2019 in the morning, when exiting the kitchen through the back door staircase at Upstate University Hopsital [sic], located at 750 East Adams Street, Syracuse, NY 13210"(Notice of Intention ¶ 2). Specifically, the Notice of Intention states that "Claimant was caused to fall due to the defective condition of the staircase at the location," that "the stairs at the location are owned, controlled, designed, constructed and maintained by agents, servants, and/or employees of [Defendant]" and that Defendant "had actual or constructive notice of the defective condition of the stairs at that location" (id. ¶¶ 3-5). Claimant personally served her Claim upon the Attorney General on August 6, 2019 and filed her Claim with the Chief Clerk of the Court on the same day (see Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, in Support ¶ 4).
Defendant now moves to dismiss the Claim pursuant to CPLR 3211 (a) (2) and (a) (8) on the ground that the Court lacks personal jurisdiction over it and subject matter jurisdiction over the Claim because the Notice of Intention fails to satisfy the particularity requirements of Court of Claims Act § 11 (b) and, as such, cannot extend Claimant's time to serve and file her claim. Claimant opposes the motion.
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 , [3-b]).
When a notice of intention is timely served, the time to file and serve a claim alleging an unintentional tort is extended two years from the date of accrual (see Court of Claims Act § 10 , [3-a]). The Court of Claims Act provides that a notice of intention "shall state the time when and place where such claim arose, the nature of same" (Court of Claims Act § 11 [b]; see Lepkowski v State of New York, 1 NY3d 201, 205 ). "While the statute does not require absolute exactness, the notice of intent must set forth the time and place where the claim arose with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Acee v State of New York, 81 AD3d 1410, 1411 [4th Dept 2011] [internal quotation marks and citation omitted]). Stated differently, "[t]he statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State" (Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998] [internal quotation marks and citation omitted]). "However, '[e]very element in a notice of intention need not be set forth with formalistic rigidity and it should not be scrutinized as strictly as a pleading'" (Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 , quoting Cannon v State of New York, 163 Misc 2d 623, 626 [Ct Cl 1994]).
A notice of intention that fails to set forth sufficient information to satisfy the particularity requirements of Court of Claims Act § 11 (b) does not extend the time within which to file and serve the claim (see Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015]). Thus, when the notice of intention is deficient and the related claim is filed and served more than 90 days after accrual, the claim is properly dismissed for lack of jurisdiction (see Prisco v State of New York, 62 AD3d 978, 979 [2d Dept 2009], lv denied 13 NY3d 706 ).
Defendant advances two arguments regarding the alleged insufficiency of the Notice of Intention. First, Defendant argues that the Notice of Intention fails to sufficiently describe the location of the place where Claimant fell. Specifically, Defendant contends that the description of "the backdoor staircase at Upstate University Hospital, located at 750 East Adams Street, Syracuse, NY 13210" is vague because "Upstate Hospital, at 750 Adams Street, is a large building, with many stairs, back and front" (Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, in Support ¶ 15). Additionally, Defendant contends that the correct address for the building at which Claimant fell is 215 Renwick Street (see id.).
Defendant appears to have overgeneralized the description of the location of the incident as set forth in the Notice of Intention. The Notice of Intention does not merely state that the accident occurred on a set of stairs at Upstate University Medical Center at 750 East Adams Street; rather, Notice of Intention states that Claimant fell "when exiting the kitchen through the back door staircase" at 750 East Adams Street (Notice of Intention ¶ 2). In opposition to the motion, Claimant affirms that (1) there is only one kitchen at the Upstate Hospital building located at 750 East Adams Street that is accessible from the back of the building and (2) there is only one set of stairs at that location (see Affidavit of Linda Robinson ¶ 4). Therefore, regardless of the address of the building, the Notice of Intention alleges sufficient information to permit Defendant to identify the place of the injury as the only staircase that can be utilized to enter a kitchen at the hospital from the back of the building (see Acee, 81 AD3d at 1411 [holding that the notice of intention alleged sufficient information to permit the defendant to identify the place of the trip and fall accident despite the erroneous allegation that it occurred in a parking lot rather than a road]). Accordingly, to the extent Defendant's motion to dismiss is premised upon an insufficient description of the location of the place of the incident, it must be dismissed.
Additionally, Defendant contends that the Notice of Intention fails to sufficiently describe how the State negligently caused Claimant's injuries. Specifically, Defendant avers that although the Notice of Intention states that Claimant fell due a defective condition on the stairs, the Notice of Intention fails to identify and describe the defective condition (see Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, in Support ¶ 16). As noted above, the purpose of a notice of intention must be specific enough to allow the State to investigate the claim promptly and to ascertain its liability (see Acee, 81 AD3d at 1411). In evaluating the specificity of a Claim, the Third Department recently held:
"Where an agency of [the] defendant has performed the internal investigation of an incident and is therefore the primary or, perhaps, even the sole source of information upon which a claim is based, it cannot be readily found that a lack of specificity has interfered with [the] defendant's ability to investigate a claim, or that [the] defendant has been improperly required to assemble information regarding a claim"
(Davila v State of New York, 140 AD3d 1415, 1417 [3d Dept 2016] [internal quotation marks and citations omitted]; see Brooks v State of New York, 2017-049-018 [Ct Cl, Weinstein, J., July 17, 2017] [holding that the claimant's failure to describe the precise location of the slip-and-fall accident at the Department of Motor Vehicles did not render the notice of intention deficient because state employees immediately investigated the accident after it occurred]).
Attached to Claimant's opposition to the motion is an incident report prepared by University Police and a Public Safety Officer immediately following the incident. The report states, as relevant here, that "the stairs in which [Claimant] fell were covered in slushy snow" (Affirmation of Edward Allen Gibson, Esq., in Opposition, Ex A at 2). Thus, Defendant promptly investigated the incident and discovered that the alleged defective condition of the stairs causing Claimant's injury was slushy snow before Claimant even served her Notice of Intention to File a Claim (see Oliver v State of N.Y. [SUNY] Health Science Ctr. at Brooklyn, 40 AD3d 719, 719 [2d Dept 2007]). Consequently, Claimant's failure to state in her Notice of Intention to File a Claim that the defective condition was slushy snow on the stairs did not interfere with Defendant's ability to investigate the Claim.
In sum, given the totality of the circumstances presented, including a precise description of the location of the incident and the immediate investigation by Upstate University Medical Center personnel, it cannot be said that the allegations in the Notice of Intention misled, deceived or prejudiced the rights of the State.
Accordingly, it is hereby:
ORDERED that Defendant's Motion M-94590 is denied; and it is further
ORDERED that, in accordance with CPLR 3211 (f), Defendant shall file and serve an answer within 10 days of the filing of this order.
November 27, 2019
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
(1) Notice of Motion to Dismiss, dated September 13, 2019.
(2) Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, dated September 13, 2019 with exhibits.
(3) Affirmation of Edward Allen Gibson, Esq., in Opposition to the Motion, dated October 21, 2019 with exhibit.
(4) Affidavit of Linda Robinson, sworn to on October 17, 2019.