New York State Court of Claims

New York State Court of Claims
VISCUSO v. THE STATE OF NEW YORK, # 2021-015-032, Claim No. 135557, Motion No. M-96295


Defendant's dismissal motion was denied as it failed to establish that the place where the accident allegedly occurred was inadequately alleged in the claim.

Case information

UID: 2021-015-032
Claimant(s): MARK VISCUSO and KARIN VISCUSO, Individually and as Husband and Wife
Claimant short name: VISCUSO
Footnote (claimant name) : Caption has been amended to correct the spelling of claimant's first name.
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 135557
Motion number(s): M-96295
Cross-motion number(s):
Claimant's attorney: Lynn Law Firm, LLP
By: Walter F. Benson, Esq.
Defendant's attorney: Honorable Letitia James, Attorney General
By: Michael T. Krenrich, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 23, 2021
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves for dismissal pursuant to CPLR 3211 (a) (2), (7) and (8) on the ground the claim fails to meet the pleading requirements of Court of Claims Act 11 (b) as it fails to adequately allege the place where the accident occurred.

Claimants, husband and wife, both seek damages for personal injuries allegedly sustained in a motorcycle accident on June 10, 2018. The claim contains the following allegation with respect to the place where the accident occurred:

"The place where said injuries were sustained is the southbound lane of New York State Route 22 a/k/a High Street, approximately 1/4 mile south of its intersection with Danforth Street, in the Village of Hoosick Falls, Rensselaer County, State of New York (hereinafter referred to as 'subject roadway')" (NYSCEF Doc. No. 8, Claim, 6).

The location of the accident is also referenced in that portion of the claim describing the manner in which the accident occurred, which states that Mark Viscuso was "operating his motorcycle within the southbound lane of New York State Route 22 a/k/a High Street when he rode over a sunken manhole cover and immediately adjacent pothole/roadway defects, including uneven, broken, depressed, unsafe . . . and trap-like conditions of the roadway surface" (id., 7). Court of Claims Act 11(b) places five specific substantive conditions upon defendant's waiver of sovereign immunity by requiring that a claim specify "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 and, . . . the total sum claimed" (Court of Claims Act 11 [b]). These pleading requirements are "strictly construed" (Kolnacki v State of New York, 8 NY3d 277, 280 [2007]; rearg denied 8 NY3d 994 [2007]) and the defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]; see also Dixon v State of New York, 153 AD3d 1529 [3d Dept 2017], appeal dismissed 30 NY3d 1087 [2018]; Hargrove v State of New York, 138 AD3d 777, 778 [2d Dept 2016], [the State is not required to go beyond a claim in order to ascertain information which should be provided pursuant to Court of Claims Act 11]). The guiding principle in determining the sufficiency of the claim is whether it is sufficiently definite " 'to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' " (Lepkowski, 1 NY3d at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). While pleading with "absolute exactness" is not required, a cause of action must be pled with sufficient specificity so as not to mislead, deceive or prejudice the rights of the State (Heisler v State of New York, 78 AD2d at 767).

In support of its dismissal motion, defendant submits the affidavit of Michael H. Lashmet, II, a Professional Engineer employed by the New York State Department of Transportation, who states that "[i]n the 2180 [f]eet (approximately 0.4 miles) between the intersections of Danforth Street and Parsons Avenue, in the southbound lane, there are 13 manholes 9 of which are part of the Village of Hoosick Falls' sanitary sewer system" (NYSCEF Doc. No. 9, Lashmet affidavit, 5). As a result, defendant contends that the claim fails to comply with the requirements of Court of Claims Act 11 (b) because its description of the place where the accident occurred is insufficiently specific. In the Court's view, however, defendant failed to demonstrate that the description of the accident location is inadequate to enable the State to perform an investigation and ascertain its liability. Although Mr. Lashmet stated that he inspected the area on State Route 22 between the intersections of Danforth Street and Parsons Avenue, observing 13 manholes within a span of approximately .4 miles, he failed to indicate the results of his inspection of the area .25 miles south of Danforth Street where the claimants allege the accident occurred. Given that the claim describes the accident location as the southbound lane of State Route 22 "approximately 1/4-mile south" of the intersection with Danforth Street, the Court cannot conclude on the proof presented that the description was insufficient to enable an appropriate investigation (NYSCEF Doc. No. 8, Claim, 6; cf. Criscuola v State of New York, 188 AD3d 645 [2d Dept 2020] [allegation that trip and fall occurred on a depression in a asphalt running path failed to sufficiently allege the place of the accident]; Sommer v State of New York, 131 AD3d 757 [3d Dept 2015] [allegation that claimant slipped and fell on ice on a sidewalk "on the campus of the State University of New York at Oneonta" was insufficient]; Wilson v State of New York, 61 AD3d 1367 [4th Dept 2009] [vague and contradictory description of the place of the accident made it impossible for the defendant to determine the situs of the fall]).

Based on the foregoing, defendant's motion is denied.

February 23, 2021

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of motion dated December 14, 2020;
  2. Affirmation in support dated December 14, 2020, with Exhibits A-B;
  3. Affirmation in Opposition dated January 13, 2021, with Exhibits 1-5;
  4. Affirmation in Reply dated January 19, 2021, with Exhibits A-C.